Mass confiscation has become politically fashionable. Politicians
and the courts have created an overwhelming presumption in favor of the
government's right to seize control over private land, private homes,
boats, and cars, and even the cash in people's wallets. While the
dispute over property rights is often portrayed as merely an economic
contest, the power of government officials to seize private property
directly subjugates citizens to the capricious will of those officials.
Once upon a time, possession was nine-tenths of the law.
Nowadays, gossip is sometimes nine-tenths of possession. Thousands of
American citizens are being stripped of their property on the basis of
rumors and unsubstantiated assertions made by the government's
confidential informants.
Beginning in 1970, Congress enacted legislation to
permit government to seize property of Mafia organizations and big-time
drug smugglers.[1] In succeeding decades, other
forfeiture laws were enacted, and federal agents can now seize private
property under more than 200 different statutes.[2]
From 1985 to 1991, the number of federal seizures of property under
asset forfeiture laws increased by 1500 percent--reaching a total of
$644 million.[3] State and local governments have also
seized hundreds of millions of dollars of property in recent years.[4] According to Steven Kessler, a New York lawyer who
authored a three-volume 1993 study on federal and state forfeiture,
"The use of forfeiture has probably increased a hundred-fold in the
last ten years."[5] Thousands of Americans have had
their property confiscated thanks to the forfeiture laws.
Unfortunately, the more
forfeiture laws legislatures enacted, the less attention police seem to
pay to major criminals. Representative Henry Hyde of Illinois noted in
June 1993 that 80 percent of the people whose property is seized by the
federal government under drug laws are never formally charged with any
crime.[6] Representative John Conyers of Michigan
declared at a June 1993 congressional hearing: "A law designed to give
cops the right to confiscate and keep the luxury possessions of major
drug dealers mostly ensnares the modest homes, cars and hard-earned
cash of ordinary, law-abiding people."[7]
Legalized Theft
Willie Jones of Nashville was flying
to Houston on February 27, 1991, to purchase plants for his landscaping
business. Because Jones was black and paid cash for his plane ticket,
the ticket clerk reported him to nearby Drug Enforcement Agency
officers, who presumed Jones was a drug courier. DEA officers at the
Nashville airport approached Jones, checked his identification, and
asked permission to search him. Although Jones refused to grant
permission, the officers searched him anyway and found $9,000 in cash.
The DEA agents then announced that they were "detaining" the money.
Jones observed: "They said I was going to buy drugs with it, that their
dog sniffed it and said it had drugs on it." (A 1989 study found that
70 percent of all the currency in the United States had cocaine residue
on it.)[8] Jones never saw the dog. The officers
didn't arrest Jones, but they kept the money. When Jones asked the
officers for a receipt for his money, they handed him a receipt for an
"undetermined amount of U.S. currency." Jones objected and asked the
officers to count the money out, but the officers refused, claiming
that such an action would violate DEA policy.
Federal judge Thomas Wiseman,
in an April 1993 decision, concluded that "the officers' behavior at
this point was casual and sarcastic... they believed that the seizure
of the currency was all but a fait accompli ... they cared little for
Mr. Jones's feelings of insecurity ."[9] Judge Wiseman
concluded that the DEA officials' testimony on the seizure was
"misleading," "unconvincing," and "inconsistent" and ordered the money
returned--after a two-year legal battle. Jones observed: "I didn't know
it was against the law for a 42-year-old black man to have money in his
pocket."[10]
A married couple in Ottsville,
Pennsylvania, had their $250,000 home confiscated after police found
marijuana plants inside the house; the couple and their three children
were effectively evicted from their own home. District Attorney Gary
Gambardella, who filed the motion to confiscate the home, observed:
"People say that selling drugs is a victimless crime, but the children
are the real losers here." [11]
Asset forfeiture increases
the power of local policemen over people they do not like. In
Washington, D.C., police routinely stop black citizens and "confiscate
small amounts of cash and jewelry on the streets and in parks--even
when no drugs are found or charges filed."[12] Ben
Davis, a resident of Washington, complained, "I've got money in both
pockets, but I don't know how much. The assumption is, if I can't tell
you exactly how much I have, it must be from criminal enterprise."[13]
Increasingly, the mere suspicion of
a government official is sufficient proof to nullify all claims that a
citizen legitimately owns his property. The Volusia County, Florida,
sheriff's department set up a "forfeiture trap" to stop motorists
traveling Interstate 95 and seized an average of over $5,000 a day from
motorists between 1989 and 1992--over $8 million dollars total. In
three-quarters of the seizures, no criminal charges were filed. An
investigation by the Orlando Sentinel revealed 90 percent of those
seizure victims were black or Hispanic.[14] When
confronted with this statistic, Volusia County Sheriff Bob Vogel said,
"What this data tells me is that the majority of money being
transported for drug activity involves blacks and Hispanics."
People whose cash was seized by the deputies received scant
due process of law; as the Sentinel noted, one deputy told two blacks
from whom he had just confiscated $19,000: "You have the right to
follow us back to the station and get a receipt." Even citizens who
provided proof that their money was honestly acquired (including a
lottery winner's proof of his lottery receipts) were treated like drug
dealers. Volusia County officials routinely offered "settlements" to
drivers whose cash they seized, offering to return a percentage of the
seized cash if the drivers would sign a form promising not to sue.
Asset
forfeiture laws are turning some federal agents into the modern-day
equivalent of horse thieves. Ranchers are being victimized by seizures
based on allegations of violations of environmental laws. On March 10,
1992, U.S. Fish and Wildlife Service and state agents trespassed 15
miles onto Richard Smith's Texas ranch, accused him of poisoning
eagles, and seized his pickup truck. The agents later tracked down
Smith's 75-year-old father, W.B. Smith, and seized his pickup
truck--threatening to leave an old man who had had five heart bypass
operations ten miles out of town with no transportation.[15] The agents produced no evidence to support their
accusation and returned the trucks nine months later without filing
charges.[16] W.B. Smith complained: "The Fish and
Wildlife Service is out of control, and the Endangered Species Act has
given them the tools to destroy the ranching industry."[17]
Lawyer Nancy Hollander told the
House Government Operations Committee in June 1993: "All too often, in
my practice back in Albuquerque, I see cases where someone loses the
family pick-up truck at the time of arrest for a non-money related,
non-drug federal crime. These persons frequently give up the criminal
case, even when the prosecution has little merit, to negotiate the
release of a vehicle which provides their livelihood." [18]
Confiscation based on mere suspicion
is the essence of contemporary asset forfeiture. In Adair County,
Missouri, local police seized Sheri and Matthew Farrell's 60-acre farm
based on an unsubstantiated tip from a paid drug informant who claimed
that Farrell had a vast field of marijuana and used tractors outfitted
with special lights to harvest it at night. Police made no effort to
investigate the allegations before seizing Farrell's farm. The case
against Farrell and 34 other local defendants collapsed when the
informant refused to testify in court--first because he claimed he had
laryngitis, and then because he claimed a total loss of memory.[19] Despite the collapse of the prosecution's case,
the police refused to return Farrell's farm. They had a change of heart
after the Pittsburgh Press exposed the case, although they
required that the Farrells sign an agreement promising not to sue
before giving back the farm. The case cost the Farrells over $5,600 in
legal fees.
Distorted Law Enforcement Priorities
Asset forfeitures distorts law enforcement
priorities; instead of chasing violent criminals, some police target
wealthy citizens. Early in the morning of October 2, 1992, a small army
of 31 people from eight law enforcement agencies smashed their way into
61-year-old Donald Scott's home on his 200-acre Trail's End Ranch in
Malibu, California. The raiders were equipped with automatic weapons,
flak jackets, and a battering ram.[20] Scott's wife
screamed when she saw the intruders, Scott came out of the bedroom with
a pistol in his hands, and police gunned him down. After killing Scott,
the agents thoroughly searched his house and ranch but failed to find
any illicit drugs.
Ventura County district attorney Michael Bradbury
investigated the raid and issued a report in 1993 that concluded that a
"primary purpose of the raid was a land grab by the [Los Angeles
County] Sheriff's Department."[21] Bradbury revealed
that at a briefing before the raid took place, government agents were
informed that the ranch had been appraised at $1.1 million and that "80
acres sold for $800,000 in 1991 in the same area."[22] The law officers at the briefing were told that if
they discovered as few as "14 marijuana plants" on the ranch, the
entire property could be seized.[23] Bradbury also
concluded that a Los Angeles sheriff's deputy had lied to obtain a
search warrant and declared: "This search warrant became Donald Scott's
death warrant. This guy should not be dead."[24] Los
Angeles officials claimed that a confidential informant told them that
marijuana was being grown on Scott's ranch, but the informant denied
ever making such a statement.[25]
In Pittsburgh, federal prosecutors last year devastated Jane
Ward after she had fully cooperated with them in testifying to help
solve the murder of her husband, John Ward. Prosecutors decided that
John Ward had been a drug dealer and that all of his previous income
was drug-related. They proceeded to confiscate almost all of the assets
of the widow (who had her own legitimate business); federal officials
arrived with a truck at the Ward's home and carted off all the family's
furniture. Prosecutors even sought to confiscate all the proceeds from
Ward's life insurance; Jane Ward and her three children were forced to
go on welfare, according to Terrance Reed, Ms. Ward's lawyer and one of
the nation's leading authorities on forfeiture law.
Asset forfeiture property grabs are sparking fights across
the nation--even in states known for giving government a long leash,
such as Maryland. In Frederick, Maryland, police seized a 1988 Toyota
pickup truck from a local resident after he bought $40 worth of a drug
placebo from an undercover cop at an open-air drug market. Under
Maryland law, local police and prosecutors have effectively unlimited
power to confiscate any vehicle they suspect was involved, or that the
owner intended to be involved, in transporting drugs. Maryland police
have confiscated thousands of autos and trucks in recent years, often
based on mere accusations.
After Maryland Delegate John
Arnick proposed a law to reform the forfeiture procedure to shore up
defendants' rights, state officials went berserk. Harford County
State's attorney Joseph Cassilly denounced Arnick's proposal: "It's a
crazy law. Absolutely crazy... It's just going to inconvenience the
hell out of everybody" by requiring police officials to testify in
court to explain why cars were confiscated.2[26]
Frank Charles Meyer, an assistant state's attorney in Baltimore County,
justified the existing law: ''It hurts the bad guy, it benefits the
good guy and it doesn't really cost."[27] Police
sometimes "settle" the forfeiture cases by allowing the auto owners to
buy back their car for half the car's value.
Government by Gossip
The Justice Department's 1992 annual report on asset seizures
declared, "No property may be seized unless the government has probable
cause to believe that it is subject to forfeiture."[28] In reality, government officials are seizing
people's property based solely on ''hearsay"--rumor and gossip--from
anonymous informants.[29] (Hearsay evidence is held
in such low esteem in the American judicial system that it cannot be
introduced into court in criminal proceedings.) Police routinely refuse
to reveal their source of a rumor about the forfeiture target; some
policemen have likely invented anonymous informants to give them a
pretext to take private property they covet. In Fort Lauderdale,
Florida, police seized the $250,000 home of a dead man from his heirs
who had cared for him while he was dying of cancer. The justification
for the seizure? A "confidential informant told police that [two years
earlier] the owner . . . took a $10,000 payment from drug dealers who
used a dock at the house along a canal to unload cocaine. The informant
can't recall the exact date, the boat's name or the dealers' names, and
the government candidly says in its court brief it 'does not possess
the facts necessary to be any more specific,' " as the Pittsburgh
Press reported.[30] Although the police had no
evidence that the deceased homeowner was involved in drug dealing, an
informant's vague, uncorroborated assertion was sufficient to evict the
owners and seize the property. While government agents can use hearsay
evidence to justify a seizure, property owners are usually prohibited
from offering hearsay evidence to support their claims.
Law enforcement officials are also seizing
apartment buildings to punish the landlords for not eradicating drug
dealing in the apartments. (If the same standard were applied to
inner-city public housing projects, almost every public housing project
in the country could be seized from the government; in 1993 Baltimore
Mayor Kurt Schmoke blamed maintenance problems at one public housing
project on drug dealers who refused to let city workers enter the
buildings.)[31]
In Florida, the Dade County Commission
revised county laws in 1989 to allow county officials ''to demolish a
nuisance building within 30 days after the police report drug activity
at the property. Proof of drug activity is defined in the ordinance as
one arrest."[32] The owner of a 36-unit apartment
building in Milwaukee sought to placate the police by evicting ten
tenants suspected of drug use, giving a master key to local beat cops,
forwarding tips to the police, and hiring two security firms to patrol
the building. The city still seized the building be- cause, as
Milwaukee city attorney David Stanosz declared, "Once a property
develops a reputation as a place to buy drugs, the only way to fix that
is to leave it totally vacant for a number of months. This landlord
doesn't want to do that."
The owner had encouraged the police to send undercover agents
into the building--but the police claimed they were too short of
officers.[33] In July 1992, several Cleveland
landlords informed the police of drug dealing in their buildings; the
city responded by quickly seizing the buildings and evicting all
tenants, even in a building where drug-dealing occurred in a single
apartment.[34] Apparently, the worse the police fail
to control crime, the more power police acquire to seize law-biding
citizens' property.
The Long Arm of Legal Plunder
Asset forfeiture is spreading like
wildfire through the statute books. Some Islamic countries impose
Draconian penalties on men who approach and talk to women in public. In
Washington, D.C., Portland, Oregon, and Hartford, Connecticut, police
confiscate the cars of men who drive up and suggest a "capitalist act
between consenting adults" to streetwalkers. Customs Service officials
in Texas seized a $138,000 Lear jet after discovering that the owner
had made a typographical error on paperwork he submitted to the Federal
Aviation Administration.[35] (The FAA's usual
response to such a mistake is to require the owner to correct the
form.)
The Immigration and
Naturalization Service has seized over 30,000 cars and trucks since
1990 from either people helping illegal immigrants enter the United
States or construction companies transporting illegal immigrants to job
sites .[36] Customs agents confiscated the $113,000
that a Vietnamese mother had collected from 20 families in the Seattle
area to take back to Vietnam for humanitarian relief for their
relatives.[37] (Customs officials pronounced the
woman guilty of violating the Trading with the Enemy Act.)
A New
Jersey mother's Oldsmobile was confiscated by police after they alleged
that her son had used it to drive to a store where he shoplifted a pair
of pants.[38] One New York businessman was forced to
forfeit all of his gas stations because of a failure to pay New York
sales tax.[39] A New Jersey construction company had
all its equipment seized after state officials decided that the company
was technically ineligible to bid on three municipal projects that it
had already completed.[40] Suffolk County, New York,
legislators considered a law in 1993 to allow local officials to
confiscate the "cars, boats and planes used in connection with any
misdemeanor."[41]
Asset confiscation programs are creating thousands of new
police informants. The Justice Department routinely gives monetary
rewards to individuals who report information or make accusations that
lead to a seizure. The forfeiture program thus turns many airline
ticket agents into conspirators with the government, since anyone who
pays cash for an airline ticket stands a chance of being reported as a
suspected drug dealer or an accomplice to drug dealing.
Perverse Incentives
Forfeiture is
the biggest growth area in law enforcement partly because federal and
local police agencies usually keep a large amount of the booty they
seize. Federal Judge Richard Arnold noted in 1992 that some observers
were questioning "whether we are seeing fair and effective law
enforcement or an insatiable appetite for a source for increased agency
revenue."[42] In Nueces County, Texas, Sheriff James
Hickey used assets from a federal drug forfeiture fund to grant himself
a retroactive $48,000 salary increase just before retirement ($400 a
month for the previous ten years). The sheriff was indicted for
embezzlement by a federal grand jury in August 1993.[43] Even internal government documents concede that
federal agents have gone overboard: a September 1992 Justice Department
news letter noted, "Like children in a candy shop, the law enforcement
community chose all manner and method of seizing and forfeiting
property, gorging ourselves in an effort which soon came to resemble
one designed to raise revenues."[44]
Prosecutors and legislators stack the deck
against property rights. A 1990 Justice Department directive declared,
"It is the Department's position that no advance notice or opportunity
for an adversary hearing is statutorily or constitutionally required
prior to the seizure of property, including real property."[45]
Professor Claudio Riedi noted in 1992 in the University of
Miami Law Review, "Frequently, the government can meet its burden
of proof by simply qualifying one of its detectives as an expert, who
then testifies that a particular way of bundling money is typical for
drug dealers. Standing alone, such testimony may be enough for a
showing of probable cause, and may therefore entitle the government to
forfeiture. In contrast, an innocent owner must adduce massive evidence
to prove her case."[46]
The Orlando Sentinel noted, "Deputies routinely said bills in
denominations of $1, $5, $10, $20, $50, and $100 were suspicious
because they are typical of what dealers carry. But that leaves few
alternatives for others."[47]
In most forfeiture court proceedings, it is up to the owner
to prove that his house, his car, or the cash in his wallet was legally
obtained--the government has no obligation to prove that the property
is guilty. The fact that a government official makes an unsubstantiated
assertion that a piece of property was somehow involved in illicit
activity effectively transfers the ownership of that property to the
government.
Asset forfeiture is proliferating in part because of a technicality
in the law that allows the government to claim that it is suing only
the item of property, not the property's owner. This is why forfeiture
cases often have peculiar titles such as "U.S. v. 1960 bags of coffee,"
"U.S. vs. 9.6 acres of land and lake," or "U.S. vs. 667 bottles of
wine." And since the Bill of Rights recognizes the rights only of
citizens and state governments, not the rights of chunks of land or
bottles of wine, there are almost no due process restrictions on
government's attacks on property. A federal appeals court recognized
this when it announced in August 1992: "We continue to be enormously
troubled by the government's increasing and virtually unchecked use of
the civil forfeiture statutes and the disregard for due process that is
buried in those statutes."[48] The citizen must show
vastly more evidence to reclaim his property than the government did to
seize it in the first place.
Government officials routinely refuse to return seized property
even after an accused person has been tried and found innocent. The
costs of suing the government to recover property are extremely high,
routinely exceeding $10,000, and citizens must post a bond of up to
$5,000 before filing suit. (The bond is required to cover the
government's legal costs in having to defend against a property owner's
efforts to reclaim his property.) The legal battles required to recover
wrongfully seized property often take two, three, or more years. If the
property seized is only worth a few hundred dollars, the person cannot
possibly break even by suing the government. Most forfeiture statutes
deny a private citizen any compensation for his attorney's fees when he
successfully reclaims forfeited property.
No End in Sight
Although the number of asset forfeiture actions has skyrocketed in
recent years, Justice Department officials apparently believe that the
seizure bull market has only just begun. Cary H. Copeland, director of
the Department of Justice's Executive Office for Asset Forfeiture,
declared at a June 1993 congressional hearing: "Asset forfeiture is
still in its relative infancy as a law enforcement program."[49] The Federal Bureau of Investigation announced in
1992 that it anticipated that its total seizures of private property
would increase 25 percent each year for the following three years.[50] The Supreme Court marginally limited government
forfeiture powers in several 1993 decisions, but Justice Department
spokesman Mark Sakaley indicated that the decisions were not expected
to have a major impact on forfeiture programs.
Mr. Copeland declared that asset forfeiture "is to the drug
war what smart bombs and air power are to modern warfare.''[51] Asset forfeiture basically allows government
agencies to carpet bomb the rights of the American people. The Federal
Eighth Circuit Court of Appeals complained in 1992 that it was
"troubled by the government's view that any property, whether it be a
hobo's hovel or the Empire State Building, can be seized by the
government because the owner, regardless of his or her past criminal
record, engages in a single drug transaction."[52]
Conclusions and Implications
Law enforcement in the
United States is reverting back toward conditions existing in England
before the Magna Carta, when rulers almost automatically seized all the
property of any person convicted of a felony. Such seizures spurred
English barons to force King John to limit his powers in 1215.[53] Unfortunately, some federal officials appear to
cherish a pre-thirteenth century philosophy of government power. (A
1992 U.S. Solicitor General's brief quoted the Old Testament and
praised forfeiture as an "ancient punishment.")[54]
Asset forfeiture provisions presume that government officials should
have the power to inflict economic capital punishment on private
citizens for the breaking of scores of laws.
Many civil libertarians believed that the liberal Clinton
administration and Attorney General Janet Reno would correct some of
the most overt abuses in the forfeiture program. However, Reno has
continually postponed substantive reform and even derailed a bipartisan
liberal-conservative congressional effort to reform the forfeiture law.
Instead, Reno's Justice Department has put forward its own "reform"
proposal that has been derided as a "prosecutor's wish list" by
forfeiture expert David Smith.
The asset seizure controversy redefines the relation between
the State and the citizen: what pretext does the State need to claim
that a citizen's property actually belongs to the State? Do people have
a right to their property only until some "secret informant" tells
police something bad about the citizen's use of his property? If
Congress proposed to forcibly alter all private deeds and titles in the
United States by adding a clause stating that the government acquires
automatic ownership rights if any law enforcement official hears a
rumor about a property's possible illicit use, the public backlash
would raze Capitol Hill. But, increasingly, that is the law of the
land.
