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Leon Felkins is a noted anti-forfeiture and civil liberties writer. You'll find his very opinionated Web site at http://www.magnolia.net/~leonf/. This article is an overview of the problem. If you're already up on this issue, you might want to copy this and distribute it to your less aware friends.
"Funding of initiatives important to your components will be in jeopardy if we fail to reach the projected level of forfeiture deposits . . . Please advise your staff of specific actions that can be taken to maximize deposits to the [Asset Forfeiture] Fund between now and the end of the fiscal year."
Confiscation of property by the government is now a very big business -- one that will not be easy to curtail. It is estimated that the Federal government now confiscates nearly a billion dollars per year (1996 is last year for which an accounting has been released) with states and cities likely confiscating as much or more. Estimates are difficult because government agencies are real shy about making such accounting readily available to the public, but the totals are roughly comparable to the "victim costs" from "Crimes of Violence and Robbery" as reported by the Bureau of Justice Statistics - see http://www.ojp.usdoj.gov/bjs/pub/ascii/coctv.txt). While there are federal laws that require some federal agencies to make annual reports on their loot (see 28 USC § 524 and 31 USC § 9703), states and municipalities typically do not have such laws and even the federal laws are sluggishly complied with (about 4 years tardy at the present time!).
Note that the issue here is not about contraband (property that is illegal to own) or for property taken to fulfill tax liens. For public safety, it seems reasonable that ownership of some materials ought to be forbidden. Further, for fairness to all, tax laws ought to be complied with by everyone.
At this time there is a bill in the U.S. Senate Judiciary committee that would curtail some of the abuses brought about by the federal forfeiture laws. This bill passed the house 375 to 48 but without strong public support is not likely to pass the Senate or be signed by the President. Federal and state enforcement agencies strongly oppose any such reduction on the very liberal laws that now allow the taking of property. Even though most of the press has reported unfavorably on the government's forfeiture activities, most civic activist groups support reform (the ACLU and the NRA are together on this issue!) and from the lopsided vote in the House one can conclude that the public also wants reform, there is actually little chance the bill will pass the Senate without much stronger support from the public and the press.
". . . the purpose of civil forfeiture is not to make a profit for the Government, but to provide a civil remedial device to impose liability on persons who knowingly or consensually acquiesce in the use of their property, . . .", U.S. Department of Justice's Asset Forfeiture Law and Practice Manual, page 2-10.Only a few of the more troublesome issues will be listed here as space does not allow the listing of all that is wrong with forfeiture.
"Even if there is sufficient evidence to sustain forfeiture, it may be ill-advised and wasteful to pursue the case if the subject property has a low monetary value or is in poor condition, . . .", U.S. Department of Justice's Asset Forfeiture Law and Practice Manual, page 4-6.
The Medieval legal fiction that the property itself can be guilty of a crime and that to "punish" the property is not a punishment for the owners or users of the property is blatant nonsense, of course. Property doesn't commit crime -- people may while in the act of using property. Why should wives and children lose their homes because the husband and father is alleged to have committed a crime?
The Founding Fathers sought to protect us from the notorious abuses of government confiscation of property that England practiced at that time. Several of the "Bill of Rights" amendments address this issue, particularly Amendment IV, which says in part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .", and Amendment V, which assures us that we will be provided "due process of law". Yet today, security against unreasonable searches and seizures is virtually nonexistent. And how much due process is there when 80% of the confiscations never even have charges brought? Further, in civil forfeiture cases, the victim must prove her innocence instead of the government proving her guilt. Is that what they meant by due process? Surely not.
Modern forfeiture law creates a temptation for fraud and corruption that ordinary people, including government and law enforcement personnel, cannot resist. If property can be taken without due process and there is little or no auditing of it once in government hands, what do you think will happen?
But the greatest loss to society is the loss of respect for law enforcement and government in general. The respect by the public of government and law enforcement personnel is now at an all time low. Recent surveys indicate that only about 20% of the citizens have a good opinion of the government when 30 or 40 years ago 80% did. Our society is in great danger when it's citizens loses respect for the authorities.
In many states now, automobiles can be confiscated for various perceived offences, without charges being brought or the obtaining of a conviction. Let us say you are pulled over and the police find a marijuana joint in the ashtray and you're driving a clunker. They take it. Now the same thing happens to your friend except he was driving a $70,000 sports car. They take it. Not only is there a problem with the fact that the autos in question may not even belong to the drivers, but the punishment cannot possibly match the crime in both cases!
Fortunately, the Supreme Court has also found this concept a little flakey. In a recent case, "United States vs. Bajakajian", they decided that $357,144 seized from Bajakajian because he didn't declare it on a Customs form, to be out of proportion to the crime. (See "Forfeiture of Cash at LAX Struck Down", L.A. Times, June 22, 1998, on line at http://www.jamesblatt.com/ruling.htm)
But there is another issue here: are we Americans willing to support any law, no matter how brutal, based on the argument that it may be a deterrent to crime? Do we want to go back to public hanging, torture, and pillorying criminals on the public square? Surely, "effectiveness" in fighting crime is not the only criteria we apply is selectin laws for a civilized society.
The modern system of government forfeiture provides little justice for the accused.
For the first time in nearly 30 years, we now have a chance to do something about this injustice. Write your senators and ask that they support the Forfeiture Reform bill now in the Senate -- as it is without watering it down any further. The news media could use a little encouragement also.
I could not express my conclusions better than Eric Blumenson and Eva Nilsen in their article in The University of Chicago Law Review, Volume 65, Winter 1998, "Policing for Profit":
All these [political] changes, mostly unimaginable a generation ago, are largely the products of 25 years of trying (and failing) to "win" the "War on Drugs". The first step towards recovery, which cannot come too soon, is to look at what we have done to ourselves, and what kind of institutions we have built, on the way to a "drug-free" society.
We should not have to sacrifice "civil" society while striving to become a "drug-free" society!
© 1999 Leon Felkins
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