Many aspects of Eric Holder’s tenure as Attorney General appalled me. I assume, however, that they reflect conscious policy from higher up and will continue under whoever replaces him. Earlier mentions of Holder here and here.
Turns out it was a prank by frequent contributor Patrick/SSFC of Popehat. And who do you think fell for it?
The Sierra Pacific/Moonlight Fire scandal developed after the state of California and federal governments combined legal forces to go after a forest products company seeking to recoup millions of dollars spent fighting a fire that they claimed the company helped cause. Over the course of the ensuing litigation, judges charged a California state agency with “egregious and reprehensible conduct,” blasted the office of then-California Attorney General Kamala Harris for less-than-professional conduct, and brought in question the conduct of the U.S. Department of Justice under then-AG Eric Holder. We covered the story here, here, here, here, here, here, and here.
Now a new book on the story by author Joel Engel is out entitled “Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption.” The author has an excerpt in the Weekly Standard (“What happens when the government lies about you in court?”). Here’s a fuller description of the book, from publisher Encounter:
To effect just outcomes the justice system requires that law enforcement officers, prosecutors, and judges be committed—above all—to doing justice. Those whose allegiance is to winning, regardless of evidence, do the opposite of justice: they corrupt the system. This is the jaw-dropping story of one such corruption and its surprise ending.
On Labor Day 2007, a forest fire broke out in California’s eastern Sierra Nevada and eventually burned about 65,000 acres. Investigators from the California Department of Forestry and Fire Protection and the United States Forest Service took a mere two days to conclude that the liable party was the successful forest-products company Sierra Pacific Industries (SPI), founded as a tiny sawmill nearly sixty years earlier by Red Emmerson.
The investigative report on the fire declared that SPI’s independent logging contractor had started the conflagration by driving a bulldozer over a rock, creating a spark that flew into a pile of brush. No fire had ever been proven to start that way, but based on the report the U.S. Department of Justice and California’s attorney general filed nearly identical suits against Emmerson’s company. The amount sought was nearly a billion dollars, enough to bankrupt or severely damage it. Emmerson, of course, fought back.
Week by week, month by month, year by year, his lawyers discovered that the investigators had falsified evidence, lied under oath, fabricated science, invented a narrative, and intentionally ignored a mountain of exculpatory evidence. They never pursued a known arsonist who was in the area that day, nor a young man who repeatedly volunteered alibis contradicted by facts.
Though the government lawyers had not known at the start that the investigation was tainted, they nonetheless refused to drop the suits as the discovery process continued and dozens of revelations made clear that any verdict against Emmerson’s company would be unjust.
Scorched Worth is a riveting tale that dramatizes how fragile and arbitrary justice can be when those empowered to act in the name of the people are more loyal to the bureaucracies that employ them than to the people they’re supposed to serve. It’s also the story of a man who refused to let the government take from him what he’d spent a lifetime earning.
The book can be ordered here.
Cheers went up from several quarters, including this one, in December and January when the Department of Justice pulled back on its “equitable sharing” forfeiture program, which provides state law enforcement a backdoor way to profit from asset forfeiture to a greater extent than their own state laws would let them do. Payments under the program were halted in December (because federal funds had run short) and then, in the final days of his service as Attorney General, Eric Holder announced that he would apply new rules limiting the scope of the practice.
Now the flow of money has resumed, albeit under the more restrictive new rules. “Given this week’s announcement, the chances that the Obama Administration will take further steps to rein in forfeiture abuse in its final year seem slim.” [Adam Bates/Cato, Scott Shackford, Ilya Somin, Santa Fe New Mexican (views of Brad Cates)] More: Trevor Burrus and Randal John Meyer.
- New Jersey arbitrator’s ruling: “Teacher Who Was Late to Work 111 Times in 2 Years Will Keep His Job” [AP/Time]
- Claim: feds’ Title IX regs on campus discipline and sex were OK, but colleges went overboard [Sam Bagenstos, Washington Monthly; my different view; Scott Greenfield] Related on OCR power: David Savage and Timothy Phelps, L.A. Times;
- Bon temps rouler: Louisiana public universities claim $274 million in damages from the BP/TransOcean gulf spill [AP/Insurance Journal]
- Washington Supreme Court flexes muscle on school finance case, fining state $100,000 a day until it falls in line with higher spending [Seattle Times]
- Not a parody: major in social justice rage at Washington State U. [one syllabus, another via Daily Caller] Hounding of Nobelist Tim Hunt in a British university milieu not so different from ours [Jonathan Foreman, Commentary]
- “Disparate Impact in School Discipline: What Does the Public Think?” [Education Week] “How Eric Holder’s Disparate Impact Crusade Leads To Quotas” [Hans Bader, Daily Caller]
- “Want Safer Kids? Send Them Into Traffic” [Lenore Skenazy on pedestrian safety practice for little ones]
One always hopes for the best, but there are multiple reasons to think that Loretta Lynch will be even less friendly toward liberty issues than predecessor Eric Holder, himself no favorite of this space. “Loretta Lynch zealously defended civil asset forfeiture during her confirmation hearings, and was a devoted practitioner of it as a U.S. Attorney in New York.” She’s a staunch Drug Warrior, too. [Adam Bates, Cato]
P.S. The Leadership Conference on Civil Rights, which bills itself as a “civil and human rights coalition,” worries not about Lynch’s record on police power or, really, any of these issues [Ed Krayewski, Reason]
This is welcome news from the U.S. Department of Justice, and rather than try to rewrite I’ll just quote at length what my Cato colleague Adam Bates wrote:
[On March 31] Attorney General Eric Holder issued new guidelines to federal prosecutors tightening the rules for seizing assets for so-called “structuring” offenses.
Under the Bank Secrecy Act, structuring occurs when someone is suspected of arranging their financial transactions as to avoid triggering a report to the federal government by the financial institution. Some of civil asset forfeiture’s most egregious abuses are the result of federal prosecutors utilizing this nebulous statute to empty the bank accounts of unwitting citizens and small businesses who are never charged with any crime or even aware that their transactions are considered illegal.
The new rules require:
1. That structuring seizures against people for whom there is no criminal charge be based upon probable cause that the funds were either generated by unlawful activity or intended for use in anticipated unlawful activity. Alternatively, prosecutors must procure a warrant from a court and with the approval of either the U.S. Attorney (for Assistant U.S. Attorneys) or the Chief of the Asset Forfeiture and Money Laundering Section (AFMLS) (for Criminal Division trial attorneys).
2. That when the prosecutor determines subsequent to a structuring seizure that the government lacks the necessary evidence to succeed at either a civil or criminal trial, the seizing agency must return the full amount.
3. That when a prosecutor seizes property pursuant to suspicion of structuring, the prosecutor must file either a criminal indictment or a civil complaint, or receive an exception from either a U.S. Attorney or Chief of AFMLS within 150 days or else return the seized assets.
4. That all settlements must be complete and in writing. Informal settlements are expressly prohibited.
I’ve been writing about the outrages of these structuring cases for years, especially the feds’ ambush of Randy and Karen Sowers’s successful Middletown, Md. dairy farm and ice cream maker, South Mountain Creamery. In yesterday’s Washington Post, Rachel Weiner tells how the Sowers’ story “gave civil forfeiture reformers a powerful symbol”, especially after the Institute for Justice got involved. I’m quoted:
“The South Mountain case happened to be one of these that captured the imagination,” said Walter Olson, a blogger for the libertarian Cato Institute who has written about the Sowers case. “Once you’ve bought ice cream for your kids from one of their little trucks, the name sticks in your memory.”
- Sheldon Silver’s law firm reportedly loses its special status in courts [New York Post] “Ex-congresswoman could get payout from court tied to Silver” [same; former Rep. Carolyn McCarthy]
- “High School Teacher With Fear of Young Children Loses Disability-Bias Case” [EdWeek, h/t @aaronworthing]
- “Worth remembering that, if they had the power in the 1980s, the public health lobby would have forced us to eat a diet they now say is bad.” [Christopher Snowdon, earlier]
- Numbers confirm that AG Eric Holder’s forfeiture reform won’t directly affect great majority of cases [Institute for Justice via Jacob Sullum, earlier]
- Despite curiously thin evidence that they work, bans on texting while driving roll on, including Mississippi [Steve Wilson, Watchdog, thanks for quote, earlier here, etc.] Draft Ohio bill has numerous troubling features, including broad bar on future technologies, vague distraction ban, stiffer penalties without judicial discretion, mandatory court dates for minor offenses [Maggie Thurber, Ohio Watchdog, thanks for quote]
- Cop’s defense in sex assault of teen: he “[had] money problems and a bad guy scared [him]” [Trumbull, Ct.; Scott Greenfield, Connecticut Post]
- “Dance like no one is watching; email like it may one day be read aloud in a deposition.” [Olivia Nuzzi]
By one estimate, “something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder’s new policy.” [Jacob Sullum, Reason; earlier] “Eric Holder’s Asset Forfeiture Decision Won’t Stop the Widespread Abuse of Police Power” [Jonathan Blanks, New Republic] “New Holder Policy Means Fewer Bal Harbours, More Motel Caswells” [Eapen Thampy, Americans for Forfeiture Reform] More: Balko, continued.
Good for Eric Holder. (And yes, that may be the first time I’ve strung those first four words together in that order.) He’s throttling way back on the “equitable sharing” program that has helped turn civil asset forfeiture into a national disgrace. A shame it’s taken this long, and that he didn’t end the program entirely.
Radley Balko praises the order as “a big deal” and notes that if effective, it “will stop local police agencies from circumventing state laws aimed at reining them in.” (If state legislatures want to allow abuse, on the other hand, the order won’t stop them.) But Balko also warns that the order is ambiguous about whether the exception made for joint federal-state task forces will be permitted, as at least one close observer warns, to swallow the rule. Many law enforcement operations have at least a passing contact with the federal government’s many programs, and if that is enough to get them exempted from the new order, business as usual may continue in the seizure of property from unwitting victims (or even under certain assumptions might things worse.) More: Roger Pilon, Jacob Sullum, Institute for Justice; lawmakers’ letter earlier this month.