When can all kinds of personal property - from cash to real estate - be accused of a crime and arrested? When can police pick the pockets of Americans and keep the proceeds - legally? When they take advantage of the broad asset forfeiture provisions of federal law, that's when, and law enforcement agencies from coast to coast have been fattening their budgets with this seized property for over a decade. Rampant abuse has provoked an outcry from all quarters that has resulted in a bill meant to bring reform to this corrupt system. H.R. 1835 enjoyed broad public and bipartisan support, but was scuttled by its lone adversary, the U.S. Department of Justice, before Congress recessed.
While conducting hearings on H.R. 1835 earlier this summer, the Committee on the Judiciary heard testimony from a broad cross section of legal experts, both liberal and conservative, who supported its passage. This reform bill would have corrected some of the most repressive of the forfeiture practices, but the Department of Justice succeeded in getting H.R. 1835 changed to H.R. 1965. This new bill also wears the label of "reform" and contains some of the provisions of H.R. 1835, but it effectively broadens some of the most oppressive forfeiture powers now used by the government.
Jack King, spokesman for the National Association of Criminal Defense Lawyers, told The WINDS that the pressure to expand forfeiture powers is "not coming from within Congress. It's the Department of Justice." When asked how the DOJ could wield more power over Congress than the voters, he replied, "The executive branch is taking advantage of the deferential respect" between the branches of government. "I think they're exploiting it," he said.
Whatever the truth is behind this political maneuvering, it is clear that the Department of Justice has single-handedly overturned a measure supported by members of both parties in Congress, and the results promise to be disastrous for all Americans' fourth and fifth amendment rights. To get a foretaste of the increased repressive powers sought by the DOJ, it is important to review a few of the aspects of civil forfeiture laws now on the books and the human rights' abuses that have emanated from them.
Animism is the ancient belief that all things in nature have souls and that inanimate objects can incur guilt in some way. Today's arcane civil forfeiture laws have their roots in medieval times where animism was prevalent. A king had the power to seize the property of his subjects for the same reason he could imprison someone - to execute his wrath upon the guilty. If a foreign vessel violated customs or maritime law in some way, and the owner could not be charged because he was in a distant land, the vessel itself was charged with the crime and seized. The essence and justification of the ancient asset forfeiture practice was that the property itself was guilty of the crime. The 1984 omnibus crime bill imported this backward and uncivilized practice into modern times, ostensibly to be used against drug dealers in the so-called "War on Drugs". "Police can now say, 'Well, we're not accusing this person of a crime, we're accusing his property of being guilty of a crime,'" said Jack King of the NACDL. "It's very primitive, superstitious, and animistic." Since the crime bill legalizing civil forfeiture was passed, it has been expanded in every Congress since then, with the exception of 1994.
The U.S. Supreme Court upheld this practice in June of last year in a case where lawyers argued that jailing someone for an offense and then confiscating his assets in a civil action was "double jeopardy" - punishing someone twice for the same crime. Chief Justice William Rehnquist, writing for the majority, rejected the argument of double jeopardy and affirmed the concept of "property guilt" by saying that the practice had long been authorized by Congress and is constitutional. (Source : CNN - Supreme Court: Seizing assets in Drug Cases is Constitutional, 6-24-96).
Current and past abuses of forfeiture powers are too numerous to mention, but a classic example may be found in the well-known case of Willie Jones, a black landscaper whose life savings, $9000, was taken from him by drug agents at Nashville's Airport as he was about to board a flight to Houston. Jones was going to Houston to buy nursery stock, but the DEA had other plans for his money. He fit the profile of a drug dealer by being black and paying for his round trip airfare with cash. Even though Jones had nothing to do with drugs and was not charged with a crime, that did not stop agents from arresting his money under the federal civil forfeiture law.
The burden of proof rests on the property owner in a civil forfeiture case and he must prove by a preponderance of the evidence that his property was not the profits of, or used in illegal activity. Mr. Jones had to get a lawyer to sue the DEA to get his money back. Because he was now broke, he had to find someone who would represent him pro bono. When his case finally went to court, the DEA could produce no evidence that Mr. Jones had ever been involved in drugs and the judge ordered them to return his money. Mr. Jones' case ended in his favor, unlike so many other cases where the defendant cannot afford to challenge the forfeiture. The Jones' case is a perfect example of the government's present policy of "seize now, fish later". Since civil forfeitures are not burdened by the same probable cause requirements as criminal cases, federal agents may seize assets and then try and prove a criminal case later. (Source: NACDL - Hearing to Highlight Forfeiture Abuses Press Release, June 11, 1997).
After a seizure, a property owner has thirty days to sue the agency in court for recovery. If someone decides to sue, they must post a ten percent bond to cover "agency costs" in the litigation. If the claimant does not post the bond within thirty days, the assets are administratively forfeited without the case ever being heard in court. Often the government keeps the assets, regardless of the outcome of the criminal case because the defendant cannot afford to sue to regain possession. Sometimes the prosecutor or police official will offer part of the assets back to the owner if the owner will promise not to sue to get the entire amount back. (ibid).
Mr. King of the NACDL sees a growing trend in seizures involving assets of small value where the owner cannot afford an attorney, or value of the seized property cannot justify the hiring of an attorney to sue for recovery. King told The WINDS that "Congress first gave the Justice Department power to supposedly destroy drug kingpins [through civil forfeitures]....Now most drug forfeitures are under $3,000 and many of them are $35 and $45. Essentially, what it has done is allowed local police, if they work for the so-called regional federal/state drug task force, to pick guys' pockets on the streets and take $75 out of their pockets and say, 'Sue us if you want it back.' And that started in 1984."
Assets seized under the federal forfeiture law go directly to the seizing agency. Therefore, the incentive is not to intercept drugs but to intercept assets. Officers may very well wait for a drug dealer to sell his merchandise before making the arrest so that the cash may be appropriated to the arresting agency. Broad federal forfeiture statutes encourage local police to enter into "drug task force" partnerships with the federal government so that they can board the forfeiture gravy train. As agencies become flush with seized assets, they become addicted to that source of income. Officers are then under increasing pressure to maintain a quota of seized assets. It is no wonder that the criminal justice system has become rife with abuse as law enforcement literally commits legalized highway robbery, all in the name of the "war on drugs."
How the Supreme Court in 1996 could uphold this abuse of constitutional rights is beyond reason. The Fourth Amendment delineates "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment even more clearly states that private property shall not "be taken for public use, without just compensation." Yet these nefarious violations of constitutional liberties continue to increase through the rapacious predatations of the the world's largest law firm, the United States Department of Justice.
The right to property is an inherent part of human rights and the U.S. government's despotic trampling of this inalienable right reveals its true position on human rights. The DOJ is merely reflecting the attitude of the United States government and the despotic powers that control it from behind the scenes. It also reflects the true attitude of the American people towards human rights because "we get the government we deserve."
It is no small wonder that Americans can sleep on while the DOJ overturns reforms that would help turn back a tide of repression. Many imagine that they are "secure in their persons, houses, papers, and effects" while the rights of others are trampled into the ground. They do not discern that this "war on drugs" is, in reality, a "war on liberty" and that one day soon they will be on the receiving end of this federally sponsored piracy business.
Of this United States government the Scriptures declare, "Thy princes are rebellious, and companions of theives: every one loveth gifts, and followeth after rewards: they judge not the fatherless, neither doth the cause of the widow come unto them." Isaiah 1:23.
Written 8/15/97