Great Antidote Extras: Scott Bullock on Criminal Justice

property rights kelo versus new london eminent domain civil asset forfeiture

Alex Byrne for AdamSmithWorks

Byrne takes two complicated property rights issues (civil asset forfeiture and eminent domain) and explains what she learned and what she still has questions about in her newest Great Antidote Extra. 
What is civil asset forfeiture, and why is it a concern to Americans across the political spectrum? You can find this and more in Juliette Sellgren’s Great Antidote episode, "Scott Bullock on Criminal Justice." Scott Bullock is the president and general counsel of the Institute for Justice. Notably, Scott represented Susette Kelo in the Supreme Court case Kelo v. The City of New London, 2005. 
Civil asset forfeiture (CAF) is a legal process in the United States that allows law enforcement agencies to seize property, including cash, vehicles, and real estate, suspected of being involved in criminal activity. However, unlike criminal asset forfeiture, which is in personam (against the person) and is directly connected to criminal sentencing, CAF is in rem (against the property) and occurs without requiring a criminal conviction or even charging the property owner with a crime.
A key takeaway from this podcast is that incentives matter. In 1984 the Senate passed the S.948 Comprehensive Forfeiture Act, which changed the ways forfeited property was distributed amongst government agencies. Before 1984 this property would go into the general revenue account of the government. However, after S.948 was passed, funds from CAF were kept by the very government agencies that were prosecuting the forfeiture cases, including police departments and Crown prosecutors. This created a perverse incentive for these agencies to take as much property as possible. Because these cases do not fall under criminal justice protections, prosecutors act as jury, judge and executioner in most CAF cases.  
Eminent domain is another area of the law, discussed by Scott Bullock, that incentivizes government agencies to seize private property from citizens. Bullock went to the Supreme Court in 2005 Kelo v. The City of New London. This case saw the government seize Suzette Kelo’s family home for the benefit of a private company in the name of “economic development.” While the supreme court ruled 5-4 against Kelo and her neighbours, this sparked wide backlash and saw many state legislatures strengthen property rights to protect their citizenry from eminent domain abuse. There’s even a movie about the case
Both civil asset forfeiture and eminent domain see government agencies embedded with perverse incentives to seize property from citizens. However, organizations like the Institute for Justice are working to better protect individuals who are having their property unfairly seized. The  American Civil Liberties Union is another organization which is working to fight abuses in CAF, while the Cato Institute is an organization who is working in opposition to eminent domain abuse. 

If you want to learn more about civil asset forfeiture and eminent domain, here are some helpful links:

Now we’d like to hear what you have to say. Join us in the comments, or use the prompts below to start your conversation offline.
  1. In this podcast, perverse incentives within the government are a throughline. Can government incentives be used for the good of the citizenry? What is a current example of this? How could government agencies change the incentive structure of civil asset forfeiture and eminent domain to protect against the abuse of these mechanisms?

  2. What other legislative or government systems have perverse incentives? Is this supported by or in violation of rights discussed in the Constitution?

  3. Are some individuals more at risk of having their property taken by civil asset forfeiture or eminent domain? Are there group-specific mechanisms that could prevent CAF and eminent domain abuse? Or is general defence more effective for all? 

  4. Can eminent domain be used in a way that does respect the natural rights of individuals? Why or why not?

If you liked this podcast, Scott Bullock also has written an interesting article in The AtlanticThe Supreme Court Resuscitates the Eighth Amendment” about excessive fines. He is also the author of a New York Post article discussing Kelo v. The City of New London, “‘Little Pink House’: When the government grabs your home”. 

Additional Great Antidote episodes: