Is Unclaimed Property Different that Asset Forfeiture?

Madison     Asset forfeiture can be a sketchy exercise of state power where oversight and accountability are lacking, but sorely needed.  Several exposes by reporters for various news sources from local papers to the New Yorker looked into the matter several years ago forcing some reforms.

Asset forfeiture means that goods acquired through illegal acts can be seized by local or national governments and either used, which sometimes happens with cars and cash, or converted to monies by that jurisdiction.  Some local sheriff and police departments were virtually funding their operations on such seizures in rural countries of Texas and elsewhere and not bothering to return the monies when defendants were found innocent.  Abuses were rampant.  On the federal level, Eric Holder, Attorney General under President Obama, curtailed some of the worst practices.  Some states did as well, although to my knowledge, it some form it still exists, and, it should.  Ill-gotten gains should not inure to convicted criminals, and should be returned to victims or, lacking victims, to the government.  The problem is accountability of course.

Somehow the way unclaimed property is handled seems a lot like asset forfeiture.  The most recent reports, though dated at 2013, indicate that states are hold $58 billion in unclaimed property.  The legal rationalizations date back to English common law in a doctrine called “escheatment.”  Just that word alone raises my eyebrows.  The Securities Exchange Commission in the US requires financial institutions to transfer the resources to states where an account holder was last know by their legal address.  They are required to make some efforts to find the rightful holder and depending on the state and their own rules might surrender the money to the state in a period as brief as a year or as long as five to seven years.  This happens particularly with uncashed checks.  Under escheatment, once that money is transferred to the state, it belongs to the state, not the original owner.  There is a requirement that once claimed, the state must return the money, but each state has their own system and rules for verifying the claim and providing the refund.

Where asset forfeiture and unclaimed property come together is that it is never in the state’s financial self-interest to actually return the money or certainly to make it easy on the claimant.  That is always the case, but it must be particularly so in these difficult financial times for governments at every level and the political poison that tax increases always represent.

With escheatment, since the money has become state property, states can spend it as they will and return it as they wish, allowing the paradoxical and unseemly controversies such as the budget battle over unclaimed money we are seeing in Louisiana.  Anyway, you look at this, the lack of accountability and the potential for abuse is mammoth not only from the states where someone might reside, but absolutely from other states that might profit from your absence.  The harder and more obscure a state makes the process for refunding the money to the claimant, the more unjust the system is and the more the state benefits.

What a mess!

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