> you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal.
So you're saying:
* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime
* Bob himself hasn't done any crimes at all.
We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.
Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.
If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.
What you're describing is functionally exactly the same as civil forfeiture that everyone is complaining about!
Civil forfeiture works fine for this case, which is the whole point, because indeed neither will Bob be able to demonstrate it's really his, nor will Alice be arriving to collect.
Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
i.e. the government performs an administrative seizure without any proof obligation, and then reverses the burden of proof onto the person from whom the assets were seized
In the real world, for small-time asset forfeiture, the amount involved is too small to be worth the effort; or Bob often doesn't have the money for a lawyer to bring that action; or this all happens while he's traveling away from home, so the court appearances are going to involve air fare, time off work etc. Or Bob is presented with the problem of proving something that is difficult to evidence, like "I have been saving this shoebox full of cash in the closet for a long time for my daughter's quinceañera"[1].
Ultimately, yes, due process is available but it's not free, it's not low-friction, and it's many a time not worth it.
> Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
I said at least twice that it's the government's job to prove that it's Alice's and not Bob's.
You proposed a hypothetical scenario where there is plenty of evidence to prove beyond a reasonable doubt that this cash was the result of a crime by Alice. So, when Bob comes and claims the cash is his, present that evidence. It's not a matter of Bob proving that it's his; it's a matter of Bob proving that this "beyond reasonable doubt" evidence you have of Alice's crime is bogus.
We're getting really into the weeds here; I'd expect a lot of the precedents to be established by a series of cases. But I would think that a reasonable starting point would be that possession implies ownership by default; and that if the government wants to prove that the money that was in Bob's possession is not Bob's, then the burden of proof is on the government to prove that. In your hypothetical scenario, there is plenty of evidence that the money is not in fact Bob's, so it's not an issue.
If it turns out the evidence that the money is really Alice's drug money is actually pretty thin, that's a reason Bob should get the money back.
So you're saying:
* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime
* Bob himself hasn't done any crimes at all.
We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.
Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.
If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.