looks like i've missed some good convo. anyways, first things first: i owe an apology to jose for getting ants in my pants about a bunch of stuff that was pre-CAFRA.
The post-CAFRA world we live in still has 3 glaring deficiencies:
1) Burden of proof - While the previous 'probable cause' standard was essentially no standard, the current 'preponderance' standard is suffers from excessive subjectivity. The dissenting opinion of this case is a perfect example. The originally proposed 'clear and convincing' standard would make me sleep much better at night.
2) Proportionality - CAFRA does not address the issue of disproportionate seizures. The burden is still on the claimant to prove the negative.
3) In rem forfeiture - the technical legal concept that property can be presumed guilty (bad money! ::spank spank:: naughty naughty money! ::spank:: ), let alone presumed anything other than inanimate and featureless, without due process. The inconsistencies blow my mind. First, property is elevated to person status without be afforded standard person rights. Second, the deprivation of someone's property is not recognized as punishment of that person. How can you punish someone if the law offers no recognition of an offense being committed? Easy; blame an inanimate object. wee-todd-ed.