A Stitch in Haste

I previously blogged the following:

And most non-lawyers know, or can guess, that a criminal defendant who is, for example, caught with illegal drugs can be acquitted (e.g., because the drug evidence was suppressed as the result of an illegal search) but will still forfeit the illegal drugs — the police of course do not give you your illegal drugs back simply because you were found "not guilty."

So, something that is never "contraband," such as cash, should never be seized in the absence of criminal guilt. Something that clearly is contraband can, on the other hand, be seized regardless of whether there is ever a conviction or guilty plea. The forfeiture of contraband is a government action that occurs outside and independent of the criminal law. This is not, without more, an affront to libertarian sensibilities.

Keep in mind, however, that whether something is contraband is an entirely different question from whether something ought to be contraband. The latter is where proper indignation lies, not the former.

You may not like the drug laws. I don't like the drug laws. But that doesn't mean that the drug laws don't exist, or that drugs aren't contraband. They are. If you get caught with illegal drugs, then you lose those illegal drugs. No finding of guilt required. Any libertarian outrage must be directed at the drug laws, not the forfeiture laws.

With that in mind, let's review a case study:

The New Hampshire Supreme Court has upheld yet another outrageous seizure of private property. From a [sic] editorial in the Manchester Union-Leader condemning the ruling:

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen's CDs. In the state Supreme Court'd [sic] Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he'd made up his mind ahead of time.

Of course, instead of relying on an editorial regarding the case from a tertiary newspaper, one might actually read, um, the case itself (which, at six pages, is hardly a daunting task):

During the hearing, Cohen's attorney stated, "In fact, we concede if the CDs ended up back up in his store, he was selling those CDs again, it would be an entirely new offense." Cohen makes similar concessions on appeal. The trial court denied Cohen's motion, stating, "The items in question were being offered for sale when they were seized. It would be illegal to sell these items knowing that they are counterfeit."
...
Cohen concedes that an innocent party may lose his property under forfeiture statutes.
...
That the possession of such compact discs is not illegal under this particular statute does not mean that the discs themselves do not constitute contraband pursuant to other statutes.
...
Cohen conceded below, and does again on appeal, that the compact discs were counterfeit. [Underline in original.

The court then proceeds to explain, quite convincingly, how Cohen's CDs clearly violated both state and federal laws regarding counterfeiting and copyright infringement.

They were contraband, based on Cohen's own concessions at trial. They were seized. The fact that no crime was prosecuted is entirely irrelevant.

I have little interest in the copyright laws. Maybe they're oppressive. Maybe we libertarians should spend as much time denouncing them as we spend denouncing the drug laws or Kelo v. New London.

But the forfeiture laws, in this case at least, worked in a perfectly hunky-dory fashion. No harm, no foul.

There are plenty of bad laws, and plenty of abuses of bad laws, to keep libertarians quite busy. We shouldn't be muddying the waters inventing "J'Accuse...!" travesties where none exist.

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The case is State v. Cohen, No. 2005-261 (Supreme Ct. New Hamp., August 22, 2006) (PDF - 6 pages).