Forfeiture Reform Lobbying and Grass-Roots Organizing Materials

On March 14th, the New Jersey Senate Law and Public Safety Committee held hearings on the state's asset forfeiture law. About a dozen law enforcement officials showed up, including Attorney General Deborah Poritz. Also, about fifteen citizens testified against the current law.

Following is my testimony, sans attachments, which was read and handed out to the committee and press. The Newark Star Ledger, the state's largest paper, printed the next to the last paragraph of my testimony verbatim in their paper, and attributed it to F.E.A.R. The hearing chairman, Louis Kosco (R-Paramus), is skeptical of forfeiture and plans to hold yet another hearing next month.

John Paff

More recently, Record readers learned that the Attorney General herself has been disbursing large sums of forfeited cash in violation of her own office s guidelines. This is the same Attorney General who, on December 11, 1995, sent representatives before this committee to testify that her most recent set of guidelines would really put a stop to the "perceived" abuses of forfeiture funds.

It is not reasonable, in my view, for this committee to expect the very law enforcement agencies that benefit from forfeiture funds to establish the rules and guidelines under which the money is spent and accounted for. Nor should the committee be surprised that there is so much abuse of this money.

The legislature has created a statutory scheme that permits prosecutors to forfeit money and property without requiring them to convict the property owners of any crime. The statute is quite direct on this point. It (N.J.S. 2C:64-4(b)) states: "The fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property pursuant to this chapter"

In other words, the statute lets prosecutors confiscate the property of parties who have not been found guilty of any wrongdoing.

Then, the same set of statutes directs the forfeited money and property into the operating accounts of the prosecuting agencies who pursued the forfeiture, and provides for the money to be split with local law enforcement agencies that assisted in the forfeiture effort.

So, the way it is set up, police and prosecutors are allowed, in effect, to keep what they confiscate. Perhaps it s just me, but I don t find it all that surprising that this system is being abused.

Nor do I find it surprising that law enforcement representatives are trying to convince this committee today to preserve the status quo. In short, the Legislature would have been hard pressed to create a system more prone to abuse.

So now, we re wondering what can be done.

In my view, the solution is to repeal Title 2C, Chapter 64 the civil in rem forfeiture law and replace it with a criminal forfeiture law. Such would do away with the ridiculous legal fiction that the property itself, as opposed to its owner, is the wrongdoer. Under a criminal forfeiture law, defendants would receive the full bundle of protections afforded under the state and federal constitutions. These include indictment, trial by jury, state s burden of proving guilt beyond a reasonable doubt none of which are available to property owners under the current system.

Also, the proceeds under a criminal forfeiture statute could go to the general treasury instead of the prosecutor s operating account. Such would abate the bounty hunter mentality that currently infects our law enforcement community. If the funds were to go into the general treasury, law enforcement, just like every other government agency, would need to justify its appropriation. This would allow elected officials, rather than law enforcement itself, to decide how much money police and prosecuting agencies need.

Also, it would tend to reduce, or hopefully eliminate, the truly shameful practice of prosecutors conditioning lighter criminal sentences upon a defendant s willingness to forfeit his assets. Under this practice, those defendants with assets to sacrifice are able to buy themselves a better plea-deal than those who don't.

This particular horror was first exposed in an October 1992 New Jersey Law Journal article by Burlington County Assignment Judge Martin Haines, and was raised as an issue by Chairman Kosco at the December 11th hearing. Lest anyone think that the examples Judge Haines pointed out are an anomaly, I have located two more examples of this abuse. One occurred in Middlesex County and the other in Somerset County. I have attached documentation of them to my written testimony.

Finally, I ask the committee, and everyone else in this room, not to mistake law enforcement s enthusiasm and zeal for the forfeiture law as having anything to do with a desire on their part to promote the public interest. Forfeiture to them is nothing more than a lucrative revenue-generating vehicle in which they have a vested interest. Given their financial interest, I would ask this committee to be suspicious of their motives and deeply discount the claims they make today.

I thank you for your kind attention and will be happy to answer any question that you may have.

John Paff

John Paff is a founding member, first President, current Secretary of the Board, and New Jersey coordinator for Forfeiture Endangers American Rights (FEAR), a nationwide asset forfeiture reform organization.