What is forfeiture and why do we FEAR it?
"Civil asset forfeiture has allowed police to view all of America as some giant national K-Mart, where prices are not just lower, but non-existent - a sort of law enforcement 'pick-and-don't-pay."
Forfeiting Our Property Rights: Is Property Safe from Seizure?
by U.S. Rep. Henry Hyde, sponsor of the Civil Asset Forfeiture Reform Act of 2000
"Findings suggest asset forfeiture is a dysfunctional policy. Forfeiture programs, while serving to generate income, prompt drug enforcement to serve functions that are inherently contradictory and often at odds with the demands of justice."
Drug Enforcement's Double Edged Sword: An Assessment of Asset Forfeiture Programs,
by J. Mitchell Miller and Lance H. Selva, Esq.
Incredible as it sounds, civil asset forfeiture laws allow the government to seize property without charging anyone with a crime. Until FEAR achieved the nation's first major federal forfeiture law reform at the turn of the millenium, the government was allowed to keep whatever property it seized without ever having to prove a case. Seized property was presumed guilty and could be forfeited based upon mere hearsay—even a tip supplied by by an informant who stood to gain up to 25% of the forfeited assets. Owners were forced into the untenable situation of trying to prove a negative—that something never happened, even though no proof of any illegal act had been offered at trial. Newspapers and television stories across the nation documented hundreds of cases of innocent citizens wrongfully deprived of their homes, businesses and livelihoods. Eighty percent of property forfeited to the US during the previous decade was seized from owners who were never even charged with a crime!
Because the police are occupied with seizing assets, fewer police are available to investigate crimes that do not involve forfeiture. Yet police and prosecutors love forfeiture because it brings in revenue for their departments. Even today, law enforcement officials and prosecutors comprise the overwhelming majority of lobbyists at hearings on forfeiture bills. Until FEAR began lobbying for forfeiture reform, police and prosecutors were usually the only witnesses at hearings on forfeiture legislation.
Over 200 federal forfeiture laws are attached to non-drug related crimes. Even a false statement on a loan application can trigger forfeiture. Physicians are subject to forfeiture of their entire assets based on a clerical errors in medicare billing. The government even tried to forfeit a farmer's tractor for allegedly running over an endangered rat. The federal government obtained a judgment of forfeiture against the prized sailboat "Flash II," once owned by the late John F. Kennedy, without bothering to provide notice to the principle owner of the forfeiture proceeding against the sloop. It took several years of expensive litigation before the district court in Massachusetts ruled the historic sailboat had never been legally subject to forfeiture; that the government had no right to seize and then sell the sloop; and that the proceeds of that sale rightfully belong to the innocent owner.
In April, 2000, FEAR achieved the nation's first major federal forfeiture law reform, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). The sponsor of the act, Rep. Henry Hyde, thanked FEAR in the April 11, 2000, congressional record "for their long and dedicated work on behalf of forfeiture reform." Though the final compromised version was stripped of many of the reforms for which we lobbied, for the first time since civil asset forfeiture laws were passed, under CAFRA the government:
- must prove its case by a preponderance of the evidence;
- is liable for damages to seized property;
- may be made to return property to owners pending trial when the seizure is causing victims substantial hardship;
- may no longer require an owner to pay 10% cost bond just to contest the forfeiture in court;
- can no longer forfeit property from owners who can prove their innocence; and
- courts may appoint counsel to some indigent claimants.
Further changes are still urgently needed at both federal and state levels. Many innocent owners still face the untenable situation of having to prove a negative—that their property was not involved in a crime, or that they had no knowledge of criminal activity. Most owners of seized property still lack the financial resources to even bring their cases to court. A final hour amendment to CAFRA won by the Dept. of Justice allows appointed counsel only for property owners who have court appointed attorneys in related criminal charges, and for some owners of seized homes.
A large percentage of forfeiture cases are never contested, in part because hiring an attorney to defend the property can cost as much or more than the value of what's been confiscated. "The average vehicle seized is worth about $4,000," states FEAR president Brenda Grantland, Esq. "To defend a case, especially when you're from another state, they've pretty much made it cost prohibitive to hire an attorney to defend a low value car."
Under civil asset forfeiture laws, the simple possession of cash, with no drugs or other contraband, can be considered evidence of criminal activity. Innocent owners who are never charged with a crime still must prove their innocence and lack of negligence in entrusting their property.
FEAR is a non-profit organization dedicated to stopping the drift into tyranny that unfair forfeiture laws encourage. Donations made to FEAR Foundation are tax deductible.
"Even if you're a law-abiding citizen who's never been convicted of a crime, local police are allowed to confiscate your property and money and keep up to 80 percent of it for themselves, with the legal stipulation that this windfall be spent only on programs likely to result in additional confiscations where the police can keep up to 80 percent of the booty for themselves," wrote Jennifer Abel in an October, 2007, article published by the Hartford Advocate.
The Spring 2007 edition of Justice Policy Journal features a 31 page treatise, Civil Asset Forfeiture: Why Law Enforcement Has Changed its Motto from "To Serve and Protect" to "Show Me the Money," [pdf file], aggressively pursue civil asset forfeitures as a means of supplementing their budgets, as well as how police agencies' addiction to forfeiture revenue leads to disregard for individual due process rights, sometimes with tragic and life-altering consequences for innocent individuals.
The perversion of law enforcement priorities was also the subject of an empirical study published thirteen years ago. Sociologists Mitchell Miller (University of Tennessee) and Lance H. Selva (Middle Tennessee State University) received the 1994 Academy of Criminal Justice Sciences Award for their undercover study and critical analysis of asset forfeiture's impact on police procedure. Based on twelve months of covert observation from within narcotics enforcement agencies, Drug Enforcement's Double-Edged Sword: An Assessment of Asset Forfeiture Programs described forfeiture as a "dysfunctional policy" that forces law enforcement agencies to subordinate justice to profit.
The Double-Edged Sword undercover researcher observed agencies abandon investigations of suspects they knew were trafficking large amounts of contraband simply because the case was not profitable. Agents routinely targeted low level dealers rather than big traffickers, who are better able to insulate themselves and their assets from reverse sting operations. The report states: "Efficiency is measured by the amount of money seized rather than impact on drug trafficking."
A reverse sting operation, where the officer becomes the seller who encourages the suspect to commit a crime, "was the preferred strategy of every agency and department with which the researcher was associated because it allowed agents to gauge potential profit prior to investing a great deal of time and effort." More importantly, the narcotics units studied preferred seizing cash intended for purchase of drugs supplied by the police, rather than confiscating drugs already on the street. When asked why a search warrant would not be served on a suspect known to have resale quantities of contraband, one officer responded:
"Because that would just give us a bunch of dope and the hassle of having to book him (the suspect). We've got all the dope we need in the property room, just stick to rounding up cases with big money and stay away from warrants."
In one case an agency instructed the researcher to observe the suspect's daily transactions reselling a large shipment of cocaine so that officers could postpone making the bust until after the majority of the drug shipment was converted to cash. This case was only one of many in which the goal was profit rather than reducing the supply of drugs reaching the street.
Decades of policing for profit have left law enforcement agencies dependent on forfeiture revenue, particularly in cash strapped communities. This dependency subordinates the pursuit of justice to the pursuit of profit.
"A conflict of interest between effective crime control and creative fiscal management will persist so long as law enforcement agencies remain dependent on civil asset forfeiture." John L. Worrall, Department of Criminal Justice, California State University, San Bernardino, Addicted to the drug war: The role of civil asset forfeiture as a budgetary necessity in contemporary law enforcement, Journal of Criminal Justice Volume 29, Issue 3, May-June 2001, Pages 171-187.
Now is the time ask Congress to pass a new federal forfeiture reform act to:
- Prevent seizing agences from treating the filing of a petition for remission as a waiver of judicial remedies;
- Establish the right to trial by jury for all forfeiture victims, including third parties in criminal forfeiture cases;
- Require all seized vehicles to be released to the owner pending trial;
- Provide court appointed counsel for indigent victims in all forfeiture cases;
- Require a criminal conviction of the owner before property may be forfeited;
- Prohibit federal adoption from being used to circumvent state laws that are more favorable to victims; and
- Eliminate the fiscal incentives that corrupt law enforcement priorities.