[Disclaimer: Due to my Department's restrictive internal disciplinary policies regarding their personnel's expression of personal opinion, certain details and aspects of my background have been intentionally redacted from this story.]

Libertarianism and Criminal Justice

Where does policing fit into Libertarianism, and vice versa? Let's explore.

First of all, if you aren't familiar with the principles of libertarianism in criminal justice, here is a basic definition taken directly from the Libertarian Party's website: "the label of “crime” should be limited to actions of force or fraud against another individual or group. Libertarians believe that such crimes should be prosecuted and punished by our justice system but that actions that don’t involve force or fraud should not be criminalized or penalized in the first place." Therefore, this particular ethos believes that our current criminal justice system is deeply flawed, in that many things that should not be considered criminal are labeled as crimes, and, worse yet, many of these actions are punished more harshly than are violent crimes. If you haven't gathered enough from my previous articles, I agree with these statements, and I tend to identify most closely to Libertarian philosophy when it comes to criminal justice and petty, victimless offenses.

In past articles, I've written about legalizing marijuana and decriminalizing petty offenses, but how does this fit into restructuring our criminal justice system as a whole? Well, I'd submit that instituting these two thoughts alone would go a long way in transforming our system from statist to restitutional.

Statist v.s. Resitutional

Basically, a statist system is one in which the state penalizes an individual who commits a crime with the underlying purposes of retribution, deterrence, and eventual rehabilitation into society through imprisonment, financial penalty, or both. Under this system a criminal is forced to make restitution to society, but not specifically to the individual to whom they have caused harm. Obviously, imprisonment under this system is extremely common, and arguably creates more violent criminals then it purports to deter. However, this issue is outside the scope of this particular article and will be discussed in later entries.

Alternatively, a restitutional system requires that the criminal, once proven guilty of a crime, pay restitution directly to their victim, where as the judicial system merely acts as a mediator between these two parties. We could go a bit further here, and say that imprisonment and rehabilitation would be reserved for only the most egregious of offenses (murder, rape, armed robbery, etc.), as to prevent the offender from victimizing any more individuals. This would function to create a sort of "hybrid" system between the two methodologies; one in which the individual pays restitution to the individual in all but the most egregious of circumstances, at which time the state would intervene for the purposes of prevention and offender rehabilitation.

Asset Forfeiture

How, then, does asset forfeiture fit into our current statist system? Well, the answer isn't as simple as one might think. Asset forfeiture can be defined as the government's seizure of an individual's personal property that is suspected to have been used in the commission of a crime, or used to facilitate the commission of a crime. As an officer, I've seen cell phones, cars, and even houses get confiscated as a result of asset forfeiture associated with individuals being charged with crimes (usually drug related). While this aspect of the justice system is certainly questionable under some circumstances, there is an even more extreme form of forfeiture that is considered by many, including myself, to be unconstitutional: Civil Asset Forfeiture. (Before proceeding, note the difference between CRIMINAL and CIVIL asset forfeiture).

While civil procedure, as opposed to criminal procedure, generally involves a dispute between private citizens, civil forfeiture is a result of a dispute between law enforcement and personal property such as a pile of cash, a house, a car or a boat, such that the object itself is suspected to have been involved in a crime. In order to regain the seized property, owners must prove that it was not involved in the alleged criminal activity; a judicial process whose expenses usually far outweigh the value of the seized property itself. Put simply, the owner of the property doesn't even have to be charged with a crime in order for law enforcement to civilly seize his or her assets.

While I definitely think that civil forfeiture as it is currently practiced in the USA needs abolishment or, at least, intensive revamping, I am also of the opinion that asset forfeiture can and should play a part in a restitutional criminal justice system. For example, if John defrauds Suzie of her retirement savings, thereby rendering her peniless, Suzie would have the opportunity to recoup some of her losses from John during his criminal trial, instead of being forced to sue him civilly. Besides, even if John is rendered guilty of his crimes, how does John's prison sentence serve to restore Suzie's lost assets? It doesn't.

In conclusion, I think the government should have a material, morally defensible reason before forcibly removing an individual's property. Criminal asset forfeiture can definitely function to serve this purpose and needs to be explored on a case by case basis. Civil forfeiture on the other hand, basically amounts to the government seizing an individual's property outside the scope of judicial oversight, thereby circumventing Due Process and the Constitution itself.

What do you think?

The author of this article is an active New York City Police Officer.

This article sprung from a brief discussion in comments with @ericarthurblair. Thanks for reading.