Why
F.E.A.R. exists
The right to own property is one of the most basic principles in our
form of government. The United States Constitution speaks of "life,
liberty
and property" all in one breath. The Fifth Amendment states that no
citizen
shall be "deprived of life, liberty, or property, without due process
of
law; nor shall private property be taken for public use without just
compensation."
The Fourth Amendment protects "the right of the people to be secure in
their persons, houses, papers and effects, against unreasonable
searches
and seizures. . ."
Unfortunately, these familiar phrases from the Constitution do not
mean
what they seem to mean when "civil forfeiture" rears its ugly head --
or
so says the Supreme Court. Relying on forfeiture's ancient "legal
fiction"
that it is the property that is on trial -- not the property owner --
the
courts have interpreted away most due process protections in forfeiture
cases, on the theory that property does not have rights. For example:
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In criminal law, there is a constitutional right to counsel -- at the
government's
expense if the criminal defendant cannot afford a lawyer. In general,
there is no such
right in civil forfeiture proceedings. The "Civil
Asset Forfeiture Reform Act of 2000" (CAFRA), for federal
forfeitures, added limited provisions for counsel to indigents.
-
In criminal law, the person is presumed innocent, and the government
must
prove him guilty beyond a reasonable doubt. Until recently, in civil
forfeiture law, the
property owner is presumed guilty, and must prove his innocence by a
preponderance
of the evidence. (This also was changed for federal forfeitures by CAFRA.)
-
In criminal law, the defendant has a right to trial by jury, and can
force
the government to prove him guilty even if he has no defense. Civil
forfeiture
claimants are often denied any trial at all -- because the court grants
summary judgment for the government, or dismisses the claimant's claim
as a sanction for failing to comply with discovery. Claimants forced to
represent themselves too often lose because they are outwitted by
aggressive
prosecutors.
-
A number of state courts have held that there is no right to a jury
trial
at all in state civil forfeiture cases. And even when the claimant is
given
a trial, it is not like a criminal trial -- instead of the government
having
to prove guilt beyond a reasonable doubt, the burden of proof is on the
property owner to prove his/her innocence.
Asset forfeiture was virtually unheard until recently. In 1984,
Congress
overhauled the federal forfeiture laws to give the government
incredible
advantages over property owners, and began expanding the list of
offenses
which could trigger forfeiture. Now there are over
three hundred federal offenses
which trigger forfeiture. But the most terrifying aspect of the
legislative
scheme in the 1984 crime bill was that it allowed the seizing police
agency
to keep what they seize and forfeit. This inherent conflict of interest
has lead to greater and greater abuses, as forfeiture income -- and
dependence
on forfeiture income -- has risen. Asset forfeiture brings in close to
a billion dollars a year for the federal government alone.
Forfeiture Endangers American Rights stands alone as
the only organization
dedicated to reform of the forfeiture laws. Although a growing number
of
national nonprofit organizations support our goals, forfeiture reform
is
only a minor plank in their political agenda. No other organization is
available to fill our role of providing an alternative to the
governments'
view on forfeiture, opposing police lobbying for further expansion of
the
power to seize property, and providing much needed assistance to
forfeiture
victims and attorneys.
A revised version of our
formal position on forfeiture that was entered into the record
of the House Government Operations Committee hearings
on forfeiture in
September 1992 is online at http://www.fear.org/fposit.html.
We need your financial
support and your volunteer
efforts. Please join
F.E.A.R. and get involved in our very important battle to restore
the Constitutional
property rights that our founding fathers guaranteed us.