As American as Apple Pie?

“[I]t is important and it is also right,” Wyoming Governor Matt Mead declared in a letter to the legislature, to keep 4th, 5th and 6th amendment protections outside the boundaries of his bailiwick. The Gov had just vetoed a bill making strong-arm robbery as illegal for police as it is for anyone else.

The theory goes that government, the same crew running courts and paying judges, is overwhelmingly disadvantaged in the arena of “justice.” Prosecutors only have a chance to save the world against opponents with both hands tied behind their backs. Public safety depends on heroes who can rifle our belongings and take what they want. Months and thousands of dollars later judicial proceedings will decide if we are entitled to our stuff. The gang that represents “the people,” on the streets and before the bar, can’t understand hostility to such a sound arrangement.

This thriving shakedown operation is a mutant outgrowth of a brainchild from the 1960’s.

Toward the end of that decade an open American secret known as the mob started to embarrass the government. Joe Valachi was talking and The Godfather was moving up NYT bestseller charts. The FBI was in serious danger of a confrontation with the truth. Either it had accommodated the Cosa Nostra for 50 years or was oblivious to its existence. Facts, as the newsmen they paid off used to say, are stubborn things.

935 Pennsylvania Avenue takes no prisoners where the Bureau image is at stake. G-Men had always been on better terms with criminal syndicates than the 1st ten amendments. Media developments forced Feds to discover the mafia in the thick of the hippie era. It was a convenient distraction. There was something distinctly uncool about J. Edgar Hoover. If you can’t be hip cloaking yourself in phony righteousness is always a good dodge. The Age of Aquarius dawned as federal intimidators were dragged kicking and screaming into a faceoff with journeyman gangsters. Special agents did their best work pretending a war on organized crime was their idea all along.  

Turning on wiseguy associates had a silver lining for Hoover: it provided cover for bushwhacking the Constitution. The view from Washington, DC is that the universal root of all human maladies is a scarcity of law. So, naturally, a new-fangled one to deal with this hitherto unknown menace was prescribed. Federal prosecutor and law professor G. Robert Blakey was drafted to craft a legal lance sharp enough to pierce omerta. Whatever else the spear went through could be fed on later.

Blakey’s Racketeer Influenced and Corrupt Organizations Act was enacted October 15, 1970. A toothy feature of the law allowed prosecutors to seek an injunction freezing a defendants assets prior to conviction. Money by itself is inadequate firepower against a battery of government lawyers. It doesn’t hurt though. The fifth and sixth amendments were never expected to seesaw the playing field in a courtroom back to an even plane. The best a good counsel can do is pry judicial tilt in government’s favor away from 90 degrees. Inquiries about where all the leverage lies today are answered by statistics. In state courts over 95% of cases are pled out. The figure is higher for federal indictments.

The government didn’t charge anyone under Blakey’s new statute until 1979. Sonny Barger and his Hell’s Angels were the defendants. They got off. After failing against the triple A the Feds moved up to the majors and Funzi Tieri of the Genovese Family. The government hit paydirt this time nailing the mob boss for a ten year sentence. With one foot in the grave Tieri served about ten weeks.

RICO, supposedly named for Edward G. Robinson’s odious little troll in Little Caesar, was lobbied as urgently necessary legislation. Organized criminal hierarchies were branded a top threat to the American system.  In an earlier article I pointed out that in reality other priorities prevailed. The Knapp Commission hearings went public in October 1971 one year after RICO was passed. If the NYPD didn’t qualify as a corrupt organization after those revelations the new law should have been scrapped. Universal knowledge of police character was evinced by the fact that New Yorkers routinely hid a deceased relative’s effects before calling authorities. Under the asset forfeiture Mead et al swear by the cops don’t bother waiting for victims to cash in before helping themselves. They take what they like at gunpoint violently threatening anyone daring to defend his own property.  

Blakey, like all prosecutors, has a nose for conspiracy in the air. That sensitive schnozz goes numb when law enforcement does the plotting. COINTELPRO and a vast range of other illegal activities perpetrated by the FBI continued well after RICO was on the books. These institutionally sanctioned crimes received widespread exposure during congressional hearings in 1976. While serving on the same committee, investigating assassinations, Blakey developed a JFK conspiracy theory. It never occurred to him that the law enforcement conspiracy bared in the inquiry was no theory. If his now infamous legal ordnance were fired at the first deserving targets of opportunity the NYPD and FBI’s worldly goods would have been seized long before any private citizen’s.

RICO was barely up and running when Congress imposed the Comprehensive Crime Control Act in 1984. It arrived when getting Big Brother off American backs was the most vocal political desire of the hour. Reagan’s best line that election year went: “Government is not the solution, government is the problem.” Little notice was given to a provision of the law allowing confiscation of private property on the basis of the legally indefinable abstraction known as “probable cause.” One year later RR’s new attorney general, Ed Meese, told US News and World Report “If a person is innocent of a crime, then he is not a suspect.” In an environment of general suspicion is anyone entitled to private property?

Mead claims there has not been “one abuse of the law or individual rights in a 40 year history” of asset forfeiture enforcement in Wyoming. In 2009 alone $900,000 of $1.3 million seized in Wyoming was returned after litigation. Hizzoner sees no abuse or imposition to people compelled to deal with courts to obtain their own property. We have no way to examine the standards he goes by.  If a subject’s vehicle is searched based on a police officer’s subjective, unmeasurable criterion of unusual behavior abuse has already taken place. No legal redress is presently available for the victim of such an intrusion. If a small amount of contraband is found and that subject is further deprived of his rent potentially life altering consequences might follow. Ex-prosecutors may believe homelessness is appropriate punishment for dope-smokers.    

State Senator Leland Christensen, who chairs the judiciary committee, said under the present statute personal property may be taken without any physical evidence whatever. A cop’s mere finding of “suspicious” acts, whatever they are, is pretext enough to relieve any citizen of wealth.  It is safe to say that the governor is unequivocally opposed to individual property rights.

MintPress News reports that “less than 4% of property seized in the state [Minnesota] between 2003 and 2010 was worth more than $5,000. In fact, the average value of property seized by law enforcement was only worth around $1,250, and it costs an average of $2,500 to challenge civil asset forfeiture in court.” These figures are roughly in line with most other states. Drug kingpins are not the primary targets of badged highwaymen. Preying upon amounts in this range keeps most cases beneath the radar at altitudes where the poor ply for survival. When larger amounts are at stake prosecutors may charge owners with a crime so abstruse very few can understand it. It will likely be difficult finding an attorney who can while the DA has all your money.

Senator Claire McCaskill of Missouri once claimed, “Forfeiture is as American as apple pie.” I’d wager most people think it’s as Un-American as lynching. The lady represents the city where Francis Macintosh met his fate in 1836. Maybe that’s another tradition she’s keen on.