Award-winning investigative journalist (and dad) Peter Gorman has spent more than 20 years tracking down stories from the streets of Manhattan to the slums of Bombay. Specializing in Drug War issues, he is credited as a primary journalist in the medical marijuana and hemp movements, as well as in property forfeiture reform. His work has appeared in over 100 national and international magazines and newspapers.
Peter Gorman's love affair with the Amazon jungle is well-known to people in the field. Since 1984 Mr. Gorman has spent a minimum of three months annually there generally using Iquitos
Peru as his base. During that time he has studied ayahuasca the visionary healing vine of the jungle with his friend the curandero Julio Jerena. He has collected artifacts for the American Museum of Natural History botanical specimens for Shaman Pharmaceuticals and herpetological specimens for the FIDIA Research Institute of the University of Rome. His description of the indiginous Matses Indians’ use of the secretions of the phyllomedusa bicolor frog has opened an entire field devoted to the use of amphibian peptides as potential medicines in Western medicine.
by Peter Gorman
Although forfeiture was supposed to deter criminal activity, it has become little more than a legal form of theft. Since 1985 more than $2.5 billion in cash and property has been seized by the Federal Government. States and municipalities may have seized that much again. Some of it went for new cars, helicopters, high-tech toys, fitness centers, Las Vegas junkets, or to pay off informants and snitches. A huge portion of the money, however, has simply disappeared down the bureaucratic black hole of corruption.
On May 27, 1988, Port Orange, FL, police arrived at the home of 58-year-old Marjorie Crawford armed with a search warrant and discovered 17 marijuana plants growing in pots along the back fence of her property. Though the property had been hers for nearly 30 years, Crawford was estranged from her abusive second husband and alcoholic sons and was not living in the house at the time. When she was later told of the raid she assumed that her sons, who had a history of trouble with the law, were responsible. But to her surprise neither they nor anyone else was ever arrested in connection with the marijuana.
Nonetheless, almost a year later the Port Orange police, accompanied by two Federal Marshalls, returned to the Crawford home and seized the property on the grounds that it had been used to facilitate the felony cultivation of marijuana. After a two year legal battle, the deed to Marjorie Crawford’s home was signed over to the government.
—At 6 AM on April 1, 1991, the Jackson County Drug Task Force, wearing ski-marks and carrying automatic weapons, arrived at Sheri Lee Little Thunder’s Kansas City, MO, hair salon and seized her corvette on the grounds that it had been bought with the proceeds of drug sales.
When Sheri Lee filed for the return of the vehicle and produced a cancelled insurance check she’d used to purchase the car legally, the seizure order was amended to read “bought with money from the sales of narcotics or used to facilitate a crime.” The alleged crime in question wasn’t explained until two months later, when Sheri Lee’s boyfriend, Denny Hardin, was arrested for two half-pound sales of marijuana to an undercover policeman. While Sheri Lee was not implicated in the sales, which occurred prior to the seizure, an unidentified eyewitness claimed to have seen Sheri Lee pick Hardin up in the car shortly after one of them, making the corvette a getaway car and justifying the seizure.
—On May 23, l986, Maria Gonzalez, an illegal alien living in New York, reported her common-law husband missing. Three days later she was asked to identify a photograph of a man who’d been brutally murdered. At the police station Gonzalez identified the victim as her husband and broke down. The police consoled her, then asked permission to search her apartment. When she said she didn’t want them in her home, the police threatened to turn her over to the Immigration and Naturalization service for deportation. She changed her mind.
At the Gonzalez apartment the police discovered drug paraphernalia and a shoebox filled with nearly $40,000. They asked its origin. She explained that she and her husband had been saving the money for several years; fear that her illegal status would complicate matters kept them from putting the money into a bank. The police didn’t believe her and confiscated the cash as drug earnings, despite the fact that neither Maria Gonzalez nor her deceased husband had ever been arrested for drug involvement. After a legal battle a judge ruled the police had the right to keep the money.
None of these women had a criminal history. None were charged with participation in a crime. None were arrested. Yet all three lost personal property to the government, and each remains confused about the laws which allowed their possessions to be found guilty of crimes for which they were never charged.
They are not alone. Every year since 1985, tens of thousands of Americans have found themselves caught up in a nightmare called the Asset-Forfeiture program, a quagmire of laws and statutes designed to take the profit out of criminal activity, particularly the drug trade, by permitting the confiscation of property even tenuously connected with a crime. The laws not only represent an inversion of the tenet ‘innocent until proven guilty,’ but prompt police departments to target assets rather than crime. They are enforced by law enforcement on all levels, bypasses the bill of rights, and returns all of the monies generated by forfeiture to the authorities who seized it.
To the Justice Department, the Drug Enforcement Administration, state and local prosecutors, the forfeiture laws are not only the newest but the most effective weapons the government has in the War on Drugs. They claim they are getting the big drug dealers where they will hurt the most, seizing yachts, mansions, fancy sports cars and hidden bank accounts. In reality, fewer than 20% of all forfeitures involve such luxury items and nearly 80% of all forfeitures do not even involve an arrest.
INCENTIVE TO FORFEIT
According to a 1991 report from Attorney General William Barr’s office, the purpose of asset forfeiture is three-fold: “1) Law enforcement: to punish and deter criminal activity. 2) Cooperation: to enhance law enforcement cooperation at all levels of government both domestically and internationally. 3) Revenue: as a by-product of the first two objectives, to be reinvested into federal, state, local and international law enforcement.”
That last is the kicker. Having law enforcement reap the financial benefits of their forfeiture work has opened the door to a kind of corruption and citizen blackmail which has never before legally existed in America.
Everyone involved in a forfeiture, from the local police precinct, the local prosecutor, any state and federal agencies, all get a piece of the forfeiture pie. The business of the way the money generated from the auction or sale of forfeited property is to be split between cooperating agencies is worked out well in advance of a seizure. In cases initiated and carried out by state agencies, all net proceeds generated by a forfeiture—the gross minus the forfeiture litigation costs, payment to informants of up to 25% of the money, and any share owed to an innocent third party—are divided by the police agencies and prosecutors involved in the case. In cases initiated by a state and turned over to the Federal authorities, known as Federal adoption, between 80 and 85% proceeds—depending on whether the cases are contested or not—are returned to the state and local agencies and 15-20% is kept by the Federal adopting agency. (Adoption generally takes place in situations where state law does not allow for real property forfeiture, or does not return forfeit money to the police. In Virginia, for instance, all proceeds of state forfeits go to schools, so to make sure they get at least a piece of the pie, many of Virginia’s state forfeits are given to the feds.) In cases where a joint task force made up of both state and federal agencies is involved from the onset of an investigation, the agency heads pre-arrange what the distribution of funds will be on a case to case basis, a concept that conjures images of members of drug task forces and local police sitting around over a beer negotiating who gets the family car and who keeps the dinnerware.
While the idea of sharing funds is intended as an incentive to enhance state and local cooperation with federal agencies, few guidelines exist as to how the monies are to be spent other than that they must be reinvested in law enforcement. In some cases this has meant paying the salaries of additional police officers or prosecutors, the purchase of bullet-proof vests, and upgrading police cars. But according to a USA Today report on Monday, May 18, for the tiny police department of Little Compton, RI, it has meant a 1991 Pontiac Firebird for the chief Edgar Hawes, a 1992 Firebird for his lieutenant, high tech cruisers, new weapons, a new firing range, guaranteed overtime shifts for each of his men, college tuition for three officers, and a new police station. Other police departments around the country have spent their forfeiture-kick-back on helicopters, airplanes, large-screen TVs, fitness centers, Las Vegas junkets, banquets, boats, new uniforms, and even salaries for additional manpower. “You can imagine what power a local sheriff with a million dollars of forfeiture money sitting in a trust wields in his community,” says Lawrence Nixon, the attorney who defended Marjorie Crawford.
And much of the money has simply disappeared, or been mismanaged. According to a 1991 General Accounting Office report “weak internal controls make forfeit funds vulnerable to loss and mismanagement.” An additional pitfall of the revenue sharing plan is identified in the 1991 report of the Michigan Auditor General, which says that “because of the potential acquisition of large amounts of forfeited assets, some local police and sheriff departments established their own (drug) enforcement teams and do not participate in the State’s consolidated narcotics enforcement efforts.” The same is true for a number of other states as well. But with so much money at stake, it’s not surprising: On the Federal level alone, according to Barr’s 1991 report since 1985 more than 2.4 billion dollars in cash and property has been seized by the Federal government. Of this, $830 million dollars has been returned to state and local law enforcement agencies.
ABUSING THE LAW
Since the standard of proof of wrongdoing is so low and the stakes so high for law enforcement authorities, the incentive to abuse property forfeiture through the manipulations of the various statutes is fantastic.
“A person would have to be living under a rock not to know that forfeiture is being abused tremendously by prosecutors around the country,” says Eric Sterling, of the Criminal Justice Policy Foundation and one of the people who worked for a Senate subcommittee which helped revise the forfeiture laws during the 1980s.
In a series of articles published in the Pittsburgh Press last year titled Presumed Guilty, authors Andrew Schneider and Mary Pat Flaherty pointed out that 80% of all Federal forfeiture cases do not involve an arrest. State figures reveal a similar trend: in a recent investigation of seizures made on Florida highways by state police, 75% of the cases studied involved no arrests, and only 6% of those who lost property even received tickets. Many people call the system legal theft.
Cary Copeland, the Director of the Executive Office of the Justice Department’s Asset-Forfeiture denies the figures. “What we’ve said is that in 80% of the cases nobody even challenges the seizures and they read that to mean that in 80% of the cases no one was charged. The reason nobody challenges is that the circumstances of the seizures are so incriminating that to come forward and claim the property would subject them to criminal prosecution.”
Defense attorneys and victims see it differently. “The government is just grabbing up whatever they can get away with,” says Brenda Grantland, a Washington, DC attorney specializing in forfeiture law. “If people don’t fight the seizures it’s not because they are guilty, it’s because of the costs involved. On anything but real estate—which requires a trial—before a person can contest a seizure made by the federal government they’re required to post a bond of 10% of the assessed value of the item. It must be paid in cash, and must be paid within 20 or 30 days of the government’s filing of a notice of forfeiture, depending on whether it was a DEA or FBI seizure. If you don’t post the bond, you lose automatically. This is to pay, in advance, for the government’s cost of forfeiting the property. If you lose the case you lose whatever part of the cost-bond the court determines is the litigation cost. If you win you get the cost-bond back. But they don’t have to pay your costs or losses, or for any damage they do to your property while it’s in their possession.”
Money for the cost-bond may not be raised on the seized items, as they belong to the government until you prove otherwise. Additionally, since the government is not obligated to provide a lawyer, and few people understand the forfeiture laws well enough to win a case without one, the cost of fighting for the return of seized property is frequently more than the property is worth. Prosecutors and law enforcement officials often count on it. In a study published by the St. Louis Post-Dispatch in 1991, reporters Tim Poor and Louis J. Rose found that it was routine for several St. Louis police departments to stop cars for traffic infractions, then threaten to seize the vehicle unless a ‘settlement fee’ was paid. “Most of those whose possessions were held hostage agreed to give them up or pay cash...rather than have to pay more in large legal fees and storage costs to take the matter to court...Some departments came to depend on the seizure proceeds to fund their own anti-drug efforts and other activities. They became, in effect, hooked on the drug war.”
The little police department of Black Diamond, WA, became so hooked on seizure money that according to defense lawyer Ken Friedman, “they weren’t making enough on forfeiture so they got permission to go to other towns and forfeit cars there.”
Black Diamond and St. Louis are not alone in their search for quick forfeiture cash from car seizures. Edgewater Co, police chief Alan Pfeuffer had his detectives pose as drug dealers to lure potential customers to his town so that their assets, money and vehicles, could be seized. And several sheriff’s departments have posted phony highway signs warning of upcoming narcotics checkpoints, only to seize cash and vehicles from all those who exit prior to the supposed checkpoint. Probable cause was established by leaving the highway after seeing the warning sign.
Most highway seizures are based on drug-courrier ‘profiles,’ general descriptions of what police should look for in a drug-courrier. Needless to say, most profiles are racist. In one report filed by the Orlando Sentinal, nine out of ten highway stops on route I-95 involved Blacks or Hispanics. Reports with similar numbers are beginning to appear nationwide.
Drug courrier profiles are also used at airports, where people found to be carrying cash—particularly blacks—can lose their money simply because a police dog smells traces of cocaine on it. But in the Pittsburgh Press series, two separate groups of scientists tested thousands of bills and found that more than 80% of all the money they checked tested positive for cocaine. “Cocaine is very adhesive and easily transferable,” Vincent Cordova, director of criminalistics for a private lab, told the authors.
A case in point: One of Brenda Grantland’s clients—he preferred to remain nameless—is a Jamaican music promoter who travels to the states annually, setting up reggae tours for Jamaican bands in New York, Washington, and Atlanta. On a recent trip he arrived in Washington DC carrying $14,000. in cash to be used to pay up-front expenses for his bands. He was stopped at the airport by federal agents after the money was seen in his bag at the X-ray counter. Though he had no drugs or paraphernalia, his money was confiscated. Three years later the government filed a notice of forfeiture with Grantland. At that time she hadn’t been in touch with her client for nearly six months. When she reached him in Jamaica, he told her to forget about the money, he wasn’t going to fight. Not because he was guilty, but because of the cost. His cost-bond was $1,400. Attorney’s fees would have been a couple of thousand. Cost of returning to the States would have been a couple of thousand more. All told it would have meant a $6,000. gamble that the government couldn’t find any taint of cocaine residue on any on the bills, a nearly impossible task.
The US government defends this sort of action as a legitimate way to keep people who were planning to buy drugs from having the cash to do so. For Grantland’s client and thousands like him, they see it as a way to raise revenue for police agencies who evaluate success with the amount of property they successfully seize. The key word is successfully, which leads to the ominous idea of the police choosing what properties to forfeit. While the government claims they are going after big time dealers, they’re mostly catching small timers or innocent people. The Presumed Guilty authors used the DEA database and discovered that items valued at more than $50,000. represented only 17% of the properties seized by that agency during a sample 18 month period between June, 1989 and December, 1990. The vast majority of their seizures involved cars and cash, presumably because the cost of fighting for their return is so prohibitive. But even among the big-ticket items that are seized, someone must make a decision about which seizures to persue and which to pass on. In most cases it comes down to dollars. A house with no mortgage owned by someone found growing marijuana is obviously a more attractive target than the house of a heroin kingpin on which 85% of the mortgage is still owed. Asked if there is a dollar number owed on a house below which the government wouldn’t bother forfeiting, Mike Perez of the Justice Department’s Asset-Forfeiture division said: “There is some net requirement, but I don’t think there is an official number.”
In fact, in several dozen cases investigated by HT, not one house with less than 50% of its mortgage paid was seized. Most were closer to 70-80% paid. In the extreme was the situation Rhonda Dropulich of Ypsilanti, MI found herself in, when state and local authorities admitted to her that they had done a bank check of her mother’s property—and discovered it fully paid for—before they set up a sting which they used to try to get the house. Rhonda and her mother were lucky: they got their house back. Few people do. While on the state level there are no statistics kept, on the federal level, Copeland says that the government is “probably successful in 98-99% of the big ticket items we go after. There are a lot of cases out there and we can afford to be selective.” Mike Perez concurs. “Once you commit to a seizure you must handle it in a business like way. Which doesn’t mean we won’t seize a loser if there is some overriding law-enforcement objectives to be gained, like a crack house we’re trying to clear out.” Neither Perez nor Copeland could provide the figures on how many of the 4,600 real properties the federal government had in the forfeiture pipeline at the end of 1991 were going to cost the government money. Neither could they estimate how many of those homes were purchased with money derived from criminal activity and how many belonged to hard working people who grew a little marijuana and found themselves on the wrong end of an informant’s tip. An informant who stood to earn 25% of the money realized from the forfeiture. “We don’t say cocaine and heroin take precedence over marijuana,” says Copeland. “We don’t differentiate.”
“The government is tempted to look at criminal enterprise not as a question of justice and wrongdoing but as a revenue devise,” says Eric Sterling. “You know, ‘How likely is it that we can sieze this defendant’s assets? And that favors the sophisticated criminal who knows how to launder assets, and disfavors John Q. Public who has things in his own name.”
Because of the latitude of the forfeiture laws and the selective nature of their enforcement, prosecutors have immense power over the lives of forfeiture victims. Many prefer assets to arrests, settlements to legal battles, and show immense vindictiveness when someone does not play their game of let’s make a deal. Greg F., of New Jersey, was arrested for growing 20 marijuana plants in his back yard in 1988. He was offered a deal by the local prosecutor: pay $70,000 in cash, his entire savings, and all criminal charges would be dropped and no forfeiture proceedings would be initiated. When he turned the offer down, the prosecutor seized his house, cars, bank account, and charged him with possession and possession-with-intent to distribute. He was convicted and given a one year sentence. He is fighting the forfeit but knows he hasn’t a chance of winning.
In Sheri Lee Little Thunder and Denny Hardin’s case, when the local Drug Task Force took her corvette she was warned not to fight for its return. When she did, her boyfriend was arrested on two counts of marijuana sales, and is currently serving 5 years on each.
According to Joseph Saint-Veltri, a Denver defense attorney, such cases are common. “They dynamic is something like this: you’ve been arrested and indicted and now you want to make a deal with Uncle Sam. ‘Tell us what you’re willing to forfeit.’ I’ve even heard stories about defendants who went out and got assets just to get off. And the prosecutors are allowed to do it.”
When sixty-three year old Pat Tilly of Ravenstown, WA, pleaded guilty to charges of marijuana cultivation for pot her abusive, schizophrenic son forced her to grow, the government’s offer was $25,000. in cash or forfeiture of her home. As she has no money her case remains in litigation. But there are thousands like her.
“Forfeiture is used to manipulate the criminal justice system,” says Eric Sterling, “to extort guilty pleas or property out of people.”
Research assistance for this article was provided by Joseph Partanski.
FORFEITURE: THE SEIZING OF AMERICA
by Peter Gorman
Asset forfeiture is the process by which the US government seizes private property suspected of being connected with criminal activity, particularly drug law violations. To the Justice Department, state and local prosecutors, the forfeiture laws are not only the newest but the most effective weapons the government has in the War on Drugs. They claim they are getting drug dealers where they will hurt the most, seizing yachts, mansions, fancy sports cars and hidden bank accounts. In reality, fewer than 20% of all forfeitures involve such luxury items and nearly 80% of all forfeitures do not even involve an arrest.
Although the roots of forfeiture can be found in the ancient British system which allowed objects to be held in violation of the law when used for illegal purposes, modern forfeiture law stems from both Maritime law and the 1970 racketeering (RICO) laws, which were designed to allow the forfeiture of property which was earned through criminal enterprise.
Those laws were broadened several times during the 1980s in response to President Reagan’s policy of zero-tolerance with regard to drug activity. Beginning with the Comprehensive Crime Control Act of 1984, a series of statutes were passed by Congress which not only increased the power of the government to seize and forfeit personal property—by making the property owner responsible not only for the burden of proof of the property’s innocence but for the court costs as well—but provided incentives to law enforcement agencies to engage in forfeiture proceedings.
The key incentive involves returning the monies raised through the sale of forfeited items to the police departments and prosecutors who assisted in their seizure. A second incentive allows up to 25 percent of the monies generated through forfeiture to be paid to informants. Since these incentives have been put in place, the Federal Forfeiture program has blossomed from a $100 million a year business in the early 1980s to nearly a $1 billion a year business by 1991.
Along with the Federal laws, states passed their own forfeiture laws, many of which covered areas not included in the federal statutes. Individual municipalities enacted statutes of their own as well, so that there now exist enough overlapping laws on the Federal, State and local level that if one branch of government cannot forfeit an item, another often can.
There are two types of forfeiture: criminal and civil. In criminal forfeiture cases the forfeiture of property is connected to criminal charges brought against a defendant. In these proceedings, before property may be seized the guilt of the defendant must be established in a court of law, and it must be established that the property was integrally connected with the crime. Prosecutors rarely rely on criminal forfeiture proceedings because the burden of proof is on them.
In civil forfeiture cases, known as in rem, however, the property itself is arrested for participation in a crime. According to Judy Osburn, writing as Ben There in Spectre of Forfeiture, “Because the property itself is the defendant the guilt or innocence of the owner is irrelevant.” And since assets do not possess civil rights, there is no guarantee of a trial by jury, and no legal council is provided for those who cannot afford it. Moreover, those whose property is seized must put up a bond before they are afforded the privilege of fighting for its return. Worse, the government must only show probable cause that the property was connected with criminal activity to seize it. It is the property owner who must prove the property’s innocence in order to win the property’s return.
In civil forfeiture, anything which produces enough evidence to acquire a search warrant is enough to institute seizure: from an informant’s tip that someone is selling or in possession of drugs, to suspicious behavior in a public place, driving infractions; drug-courrier profiles, or evidence of actual criminal activity.
Losing property to forfeiture is easy: the police, federal agents, or a federal Marshal simply inform you that the property you once owned now belongs to them. In cases where cars, airplanes, boats, money, or other non stationery items are involved, the authorities simply confiscate the property on the spot. “Get out of our car, son,” is a line dozens of motorists who have lost their vehicles have reported hearing from the men in blue.
In cases where real property is involved, the police or feds may announce that the property is theirs, but it won’t be official until a federal Marshal posts a notice of forfeiture to the property. Once they do, the property owner will be ordered off the property. If they remain they will be cited for trespassing.
One of the subtleties of the change of property ownership from ‘your’ house or car or money, to ‘the government’s’ house or car or money, is that the claim of ownership by the government dates back to the time of the alleged criminal activity. Which means that if you buy a house from someone and it later develops that the previous owner used that house to facilitate a crime—lets say they were growing marijuana—the government can take the house away from you even though you were not connected in any way with that criminal activity. This ‘relation back to the crime’ doctrine has a five year time limit from the date of the alleged crime in which to institute forfeiture proceedings. In some cases, property has changed hands several times during that period, but the government’s claim takes precedence.
Another quirk in the law is that someone who rents or lends property is responsible for the actions of the person to whom they rented or lent that property. Let’s say you lend your car to a friend who gets caught smoking a joint in it. You can lose the car even though you had nothing to do with the joint because you, as the owner, were responsible for that person’s actions in relation to your property.
Similar rules apply in terms of real property: if someone uses your property to facilitate a crime, you are responsible. In the case of 69 year old widow Mae Gantt, of Montgomery, AL, her repeated calls to the police asking them to get rid of the kids—including several of her own grandchildren—who were selling crack in front of her home resulted in the arrest of 18 people and the seizure of her house. “I just came home from work one day and they said it wasn’t my house anymore,” she told a reporter from the Montgomery Advertiser. None of the dealers lived in her home, no crack was found in the house, and Gantt was not considered a suspect in any way. But since the sale of crack was occurring on her property she was held responsible, despite being the one who called repeatedly for the police to stop it.
The legal remedy in such cases is called ‘the innocent third party defense.’ By law, if a person can prove that they had no knowledge of the criminal activity, or tried to stop it—by trying to evict drug dealing tenants, for instance—they will have their property returned. Prosecutors, of course, don’t like this defense, and some have gone out of their way to subvert it. Defense attorney Lawrence J. Nixon, says that in Florida there are even guidelines for getting around this defense. “One of the things the police typically do is this: when a kid is picked up while in his parents car, say for drugs or alcohol, they ask the parents ‘How long has this been going on?’ And mom might say ‘I’ve been worried for a year now.’ And that can be used as evidence to seize the car since it implies she knew her son was involved in illegal activity. You should see some of those parents’ jaws drop when they come down to the station the next day and I tell them that the cops want to sell their car back to them.”
It gets even worse: “One of the most callous things I’ve ever heard was from a Fort Lauderdale city attorney who was lecturing on real estate forfeiture,” says Nixon. “She said that undercover agents should always remember that when they’re in a house buying dope they should ask the wife to make coffee or tea or otherwise get her into the room so that she can’t deny she was present and knew a sale was going on. Which would, of course, kill the potential ‘innocent third party’ defense.”
GETTING PROPERTY RETURNED
While the government is sometimes forced to return property which has been seized either wrongly or under the ‘innocent third party defense,’ the process is a costly and complicated one. One reason is that even when property is returned by the government, the cost of attorneys’ fees are the responsibility of the property owner. And attorney fees are only one hurdle in the fight to reclaim property seized by the government.
In Federal cases—state law varies widely—after property is seized, the seizing agency initiates forfeiture proceedings. This can take months or even years. But once the property owner is notified of those proceedings he or she must file a claim of ownership and post a ‘cost bond’ for the property’s return. In cases where the property is valued at less than $500,000, the cost bond will be set at 10% of the property’s value, with a ceiling of $5,000. The bond is intended to cover the costs of the court proceedings and must be posted within a specific period—20 days if the DEA initiated the seizure; 30 if it is an FBI seizure, and varying amounts if it is state or local. Otherwise, the property is automatically forfeited—with rare exceptions—to the seizing agency. The loss of property this way is called an administrative forfeiture.
If, however, the property owner files the claim and cost bond, (which is kept by the court if the government wins the case), the government is forced to file a civil complaint against the property in court, showing probable cause for having seized it. Once the complaint is lodged, the property owner has 10 days to answer the government’s claim, and 10 additional days to file verified proof of ownership and demand a jury trial—if they want one If the property owner does not ask for a jury trial the case will be tried by a judge. If a jury trial is asked for by the property owner, the trial proceeds as regular civil lawsuit, except that the burden of proof of the property’s innocence remains the property owner’s.
As can be imagined, the costs involved in this type of litigation are prohibitive in most cases. According to Janet Sherman, a top flight forfeiture attorney from Malibu, CA, lawyers fees for the simplest cases begin at $10,000 and can easily reach $50,000 or more. Spending that kind of money to reclaim an automobile or a couple of thousand dollars seized at an airport is out of the question, which means nearly all the government’s civil cases are won by administrative forfeiture.
But even assuming that someone is willing to spend that kind of time and money to reclaim their property, there is no guarantee that they will get a fair hearing. The first pitfall, according to Jeffrey Steinborn, a Seattle based defense attorney, “is finding a lawyer who knows the difference between a forfeiture proceeding and a hot rock. Very few defense attorneys are well versed in forfeiture law, and if your attorney makes any mistakes with the proceedings, botches a time limit on filing something or something, you lose everything.”
The second pitfall to fighting forfeiture is finding a way to pay for an attorney, since money cannot be raised on property that has been seized by the government. The logic here is that since the property belongs to the government until you prove otherwise, you no longer have any equity rights in it. Moreover, as a rule, when real property is seized—as is nearly always the case where marijuana cultivation is involved—the property owner’s bank accounts and other assets are seized as well, leaving them virtually penniless unless and until they can prove that those other assets were not tainted by the alleged criminal activity.
The most outlandish case of ‘tainted property’ reported to HIGH TIMES, occurred to Tony M—he requests anonymity as is case is still in litigation—a northern California man. The owner of two homes, he was caught growing marijuana in one of them. The DEA seized both of his homes, his cars, his bank account and all of his personal possessions. To secure a lawyer he borrowed $25,000 from his mother, who lived several states away.
Several months later, Tony M’s lawyer asked for another $20,000 to continue the case, and he called his mother again. To her surprise, when she went to her bank she discovered that her savings account assets had been seized. The grounds: she and Tony had had some financial dealings in the past. Additionally, she had written Tony a letter outlining the contents of her will, and giving him the numbers of the accounts which contained the money she was leaving to him. In going through Tony’s seized possessions the letter had been discovered, and that suggested to the feds that perhaps the money was being laundered by her for him. Needless to say, despite her being able to account for the seized money, with her assets gone Tony’s mom was unable to fight for the return of the money and lost it.
“Sophisticated criminals,” says Cary Copeland, the Justice Department’s director of the Executive Office of Asset Forfeiture, “don’t put their property in their own names. They’re going to put it in their mother’s name, or their girlfriend’s name, and yeah, we try to go after those assets. Very often it goes to mom. If she can explain where every penny of it came from, of course, she can get it back.”
Not, he was reminded, if she hasn’t the money for the cost bond and the lawyer. Or if the legal fees are going to come to more than the amount of money seized.
Another pitfall to fighting forfeiture is that if a civil case is taken to court and won—and the property is ordered returned—the government may initiate a second suit, or a third or fourth, to forfeit the property, sinking the property owner deeper and deeper into the financial mire. This is rarely done, but legal, because while the concept of double jeopardy prevents a defendant from being tried twice for the same crime, there is no double jeopardy with regard to property.
More frequent is the repeated trial of a case in which the jury deadlocks: when Judy and Lynn Osburn’s cultivation case resulted in a hung jury, the government retried the case a second time. When that jury also deadlocked and the government threatened to try the case a third time, their lawyer joked that “pretty soon you’re going to be my tenants.” In their case the government did not go through with a third trial, but it certainly could have.
The result of such a stacked deck? The government gets almost everything it goes after. “Our success rate with forfeitures, particularly items like homes, is probably 98-99%” says Copeland “There are a lot of cases out there and we can afford to be selective.”
For those people who manage to avoid the pitfalls of forfeiture defence and can afford to take a case through the courts, the end result in more than half the cases is a settlement by the government for part of the property involved. Settlements are generally made because the government doesn’t want to continue litigation, which cuts into the profit to be made from the forfeiture. Ron Sinoway, a northern California attorney who specializes in forfeiture cases puts it this way: “Forfeiture is a business, and the government conducts itself that way.”
“I’ve actually only had to go through with a jury trial once in a forfeiture case,” says Janet Sherman, “and that was nearly five years ago.” Clients take the settlement offer, Sherman says, “because who wants to incur additional legal fees and then take a chance on what a jury will find? Especially when the government is willing to allow you to keep some, or all, of your property for a fee.”
How is a settlement offer judged successful? “In real estate forfeiture, any settlement which allows you to keep your house and leaves you with enough money to continue living there is a successful settlement,” says attorney Jeffrey Steinborn.
In cases where marijuana is found growing on a parcel of land or in the home, however, settlements are rare. “When you are caught actually growing marijuana on your property it’s tough to defend against forfeiture,” says Steinborn. “And,” he adds, “since marijuana cultivation charges are almost impossible to defend, those are the real estate cases the government goes after. I’d estimate that I’ve seen somewhere around a hundred real property cases so far, and only one did not involve marijuana cultivation. Why? Because they’re easy targets.”
Neither the Justice Department or the DEA were able to identify how many of their real property forfeitures involved marijuana cultivation. “We just don’t keep those statistics” HIGH TIMES was told by both agencies.
State cases often have a very different set of rules than federal ones, and the settlements can be very different. Attorney Lawrence J. Nixon, the lawyer for Marjorie Crawford—the woman whose house was forfeited when 17 marijuana plants were found growing in pots along her back fence—got what he considered a very successful settlement when the State of Florida agreed to allow her to live out her life in her home before turning it into a children’s park. Of course, since no one was arrested and charged with any crime in the case, few of us would consider that a victory, but as settlements go it’s better than most.
In the St. Louis Post Dispatch series on forfeiture, Hooked on the Drug War, authors Tim Poor and Louis J. Rose state that between 1988 and 1990 police in St. Louis County “seized cars, cash or jewelry from more than 1,200 people they arrested and threatened to keep the property if the suspects did not pay ‘settlement’ fees,” many of which were made on the spot, “without telling prosecutors or informing the courts. Most of the suspects were never convicted...and many were never charged.”
Typical of the cases Poor and Rose reported was one in which the mother of a 17 year old who was arrested for drunken driving. The car was seized when a marijuana pipe was found in the ashtray.The settlement offer, made by the Police Chief of Calverton Park, was $200 for the return of the car and no charges filed against her son. Needless to say the woman paid. Another typical case reported by Poor and Rose involved an informant who was wired by the FBI who recorded a conversation with a police officer in which $1,000 was demanded for the return of the informant’s car.
In most such cases, and dozens of police departments around the country appear to be involved in the same sort of citizen blackmail, the police explain to the car owners what the seizure, if it goes forward, will cost. Once a person starts adding up the cost of a lawyer, the bond, the payment for storage, and the wear and tear on the car (since the police are allowed to use all property while it is in their possession), most owners appear to prefer to settle as quickly as possible, and simply cough up the money.
As a standard practice, both state and federal settlements are made with the understanding that the government cannot be sued for the forfeiture action.
WHEN THE GOVERNMENT IS DEAD WRONG
According to Cary Copeland, there are no bad cases, only sore losers When told that the Pittsburgh press had documented 510 cases of innocent people having lost property to federal forfeiture, he said the paper had gotten it wrong. When asked how many cases he knew of in which the government did admit error, his response was “The government admit error? I’ve never heard that before.”
While the government may not admit to making mistakes, they do happen. Unfortunately, the best a person can hope for is that their property is returned without damage, since the government is not responsible for any damage done to it while it’s in their possession. Neither is the government responsible for the costs of litigation, even when property is returned to its original owners. And as yet, no one has ever received punitive damages for the money and trouble a wrongful seizure cost them.
“It is possible to get attorney fees paid by the government under the Equal Access to Justice Act,” says Brenda Grantland, one of just six attorneys who have been the exceptions to the ‘government doesn’t pay legal fees’ rule. “If you win a case and then show the court that the government’s action was not substantially justified, you can show you were denied equal access to justice. But the government is immune from punitive damages.”
Grantland points to the legal precedent that gives the government a sort of sovereign immunity. “In 28 USC 24-65, it says ‘Upon entry of judgement for a client in a forfeiture case, if the judge finds there was reasonable cause for seizure, the person whose property was seized cannot sue the prosecution or the person who seized the property. On the matter of damages to property seized by the government, she says that “in Kosat vs US, 4.65 8-48-1984, the US Supreme Court said that the Federal Tort claims act exempts the US government for damages to property while its held for forfeiture, whether it was held legitimately or not. The Federal Tort Claims act also prevents the government from being sued, unless it agrees to be sued.” Additional statutes prevent the government from being responsible for the actions of its employees.
These and other statutes limiting the government’s fiscal responsibility put the government in the position of not risking anything with a forfeiture. The worst that can happen is that the seized property is returned. “The police would have to knowingly and maliciously violate a set law to open themselves up to legal action,” says Jeffrey Steinborn.
Individual state laws protect local governments in a similar way. Case in point: In 1990, Kathy Schrama, of Sussex County, New Jersey, was accused of stealing UPS packages from a neighbor’s front porch. Total value of the alleged thefts was listed as ‘more than $500.’ Both she and her husband were arrested and their house—paid for in full—and cars were seized. The day after the arrest the state moved out all of their belongings, and the Schramas were put out on the street. Six months later their lawyer managed to get them permission to move back in pending the outcome of forfeiture litigation. The cars were not returned at that time.
The Schramas fought the legal battle for 18 months before agreeing to plead guilty to 3rd degree theft of the packages and pay $5,000, in exchange for the government dropping the forfeiture. The cars, needing $700 in repairs, were also returned as part of the agreement. All told, the Schramas have paid more than $50,000 in legal fees, have lost a similar amount to the damage to their home and property, and an additional $30,000 in damage to the property removed from their home. The government is responsible for none of it, since the guilty plea proves that there was a justifiable seizure. And if she hadn’t agreed to the plea? “The forfeiture would never have been dropped. That was the deal.”
Schrama has gone on to start a group called FEAR, Forfeiture Endangers American Rights. “Never in our wildest dreams did we think that our government could do something like this,” says Kathy, “this has been a nightmare. Life will never be the same for us.”
The entire case against the Schrama’s depended upon the word of a neighbor, who claimed that packages had been stolen. That the packages could not be identified didn’t matter. The word of an informant counts.
Brenda Grantland, who works with FEAR, is angry at such cases, but doesn’t find them all that unusual. “Hey”, she says, “in most forfeiture cases that I know of the seizures were executed without even a seizure warrant. They just come in and take whatever they want to claim was related to the alleged illegal activity.”
One of the most important weapons law enforcement has in asset forfeiture proceedings is the informant. Unlike informants in criminal proceedings, however, who stand to have their own sentences lightened in exchange for information, informants in forfeiture cases can make as much as 25% of all monies realized from forfeitures in which they are involved. In 1990 alone, the Justice department paid out $24 million to informants.
In the 1991 Pittsburgh Press series Presumed Guilty, authors Andrew Schneider and Mary Pat Flaherty suggest that with that kind of money in the kitty a new class of informant, the professional, has been created. “Anthony Tait, a Hell’s Angel and admitted drug user who has been cooperating witness for the FBI since 1985, earned nearly $1 million for information he provided between 1985 and 1988...Edward Vaugn of suburban San Francisco earned $40,000 in salary and expenses between August 1989 and October 1990, and was promised an (additional) 25 percent cut of any forfeited goods...”
Moreover, like law enforcement officials, who frequently decide who to go after based on what they have to forfeit rather than on the nature of their criminal activity, informants often target people for their assets. The Presumed Guilty authors quote Eric Sterling of the Criminal Justice Police Foundation. “What paid informant in their right mind is going to turn over a crack house—which may be destroying an inner city neighborhood—when he can turn over information about a nice suburban spread that will pay off big when it comes time to get his share?”
The Justice Department’s Cary Copeland scoffs at the notion that there is abuse potential in such procedures. “Snitch pay offs are money well spent,” he says. But are they? Or are they helping to turn ordinary people into would-be crimebusters? In most airports and bus terminals, X-ray machine operators, baggage handlers, and ticket sellers are encouraged by the lure of a cash jackpot.to finger customers they deem suspicious. And programs like DARE encourage people to keep an eye on their neighbors, not only to keep drugs off the streets, but because of the potential payoff.
And as crazy at it seems, an informant’s word is enough to base a forfeit on, even if there is NO other evidence of criminal activity. In the case of Sheri and Matthew Farrell of Addair County, MO, (written up in Presumed Guilty), a snitch named Steve R. Mudd who went to work as a civilian undercover informant for $4.65 an hour ended up fingering them as large-scale marijuana growers. Though the police found not a single plant, joint or marijuana seed on the Farrell’s 60 acre farm, and later had to drop all 35 of the cases Mudd had been involved in when none of the ‘drugs’ he supposedly bought with police funds turned out to be real drugs, the Farrell’s farm was nonetheless seized by the federal government, and is currently working its way through the system. There is no guarantee that the Farrells will win their case, because, as David B. Smith, the former Associate Director of the department of Justice Asset Forfeiture Office explains in his book Prosecution and Defense of Forfeiture Cases, “rank hearsay is admissible to prove that the property is guilty.”
In Michelle Gilberti’s case, not only was her home seized—it is currently in litigation—but her husband was convicted of conspiracy and sentenced to two concurrent three year terms after a professional informant, Jeffrey Scott, claimed that he delivered cocaine 25 to 50 times to Gilberti’s husband, Joe. There was no other evidence against Gilberti in the case. Scott, who had been paid $250,000, and promised 20% of all forfeiture monies realized for his information, has since been given a new identity. The DEA agent he worked for, Edward K. O’Brien, has since been caught in a DEA sting while purchasing 62 kilos of cocaine from agents at Logan international airport with $144,000 stolen from the Springfield MA DEA office.
NEW DIRECTIONS FOR FORFEITURE
Despite the obvious abuses of the system, forfeiture laws continue to be broadened. Senators Joseph Biden and Strom Thurmond have both recently introduced bills which would allow the government to forfeit the property of ‘terrorists.’ If they passed unamended—they won’t—the word ‘terrorist’ could be interpreted as meaning anyone who participates in any violent (they get to define ‘violent’) demonstration, or encourages the overthrow of the government, which, in turn, could effectively stifle free speech.
As Jeffrey Steinborn points out, “They tried out these laws on drug dealers—for whom no one has any sympathy—and now they’re beginning to broaden them to include everything. The FDA is pushing for laws which would effectively outlaw the health food industry, vitamin supplements, and homeopathic health care, with forfeiture as the penalty. And it’s going to get worse.”
State laws are being broadened even more quickly. California, which never allowed the forfeiture of real property for marijuana, has a bill before the state which would change that. In New York, a person who approaches a prostitute while in a car can now lose their vehicle. And New Jersey and Arizona statutes allow for the forfeit of property in connection with any criminal activity.
“I’ve been in this for 12 years now,” says Kevin Zeese, vice-president of the Drug Policy Foundation, “and every year I keep saying it can’t get worse, but every year it does get worse.” The reason, according to Zeese, is the manipulation of the Drug War fears. “We keep waiting for it to swing the other way, but as soon as someone starts to make a little progress some new drug scare is stirred up which gives them a reason to make a whole new series of laws.”
Actually, few people in the government really want the laws changed. When senator Arlen Spector planned Senate Judiciary Committee oversight hearings into the federal forfeiture laws—postponed several times as we go to press—the agenda planned to deal with how better to split the forfeiture pie and oversee the cash flow, but did not include any scheduled testimony from victims. The reason is that the government does not believe there are any victims, only sore losers.
One of the rare exceptions to that true-believer mentality is Florida’s Governor Lawton Chiles, who recently appointed the first panel in the country to specifically investigate abuses in state forfeiture law. But for every Chiles there is someone like New Hampshire Governor Judd Gregg who recently vetoed a state bill that “would have required judges to consider whether the amount of property seized in drug cases fit the gravity of the crime.” Gregg’s response when he vetoed the bill: “There is no such thing as a small drug dealer. There’s no middle ground.”
With that sort of attitude and the deck the government has stacked, there is really no fighting forfeiture for most people. There are exceptions, of course: if you can prove you’re indigent, the court will appoint you an attorney, for instance, but the attorney may not be what you’d hope for. You can also fight it yourself, though almost no one wins that way. Actually, as Ron Sinoway says, “the best defense for forfeiture is to have your property heavily mortgaged. The government can’t take what you don’t own.”
There is a glimmer of hope on the horizon, however. Congressional hearings on asset forfeiture, chaired by representitive John Conyers (D—MI) are scheduled to begin on Sept. 30, and may help bring the issue home to most Americans. Unlike the Senate Judiciary Committee hearings, Conyers has quietly been contacting defense attorneys and forfeiture victims and plans to have them speak. “The public will be outraged by what they hear if the hearings go on as scheduled,” says Brenda Grantland. “People who have lost things will be coming from all over the country to make sure America finds out what’s going on.”
But until the public does react, the government will continue to seize the assets of citizens. And even if public outcry eventually forces policy changes those who have already lost their cars and money and property will not have access to remedies. James Burton and his wife, Linda, who were caught growing marijuana for his glaucoma, will not get their 90 acre Kentucky farm back. Bradshaw Bowman, an 80 year old from Utah who lost his 160 acre ranch when police found marijuana growing on a remote trailside, will not have the ranch returned. Neither will Ethyl Hylton, who had her life savings confiscated at a Houston airport simply for being black and carrying cash, get her savings back. For them and thousands of others, the war is over and they have been taken prisoner.
Research assistance for this article was provided by Joseph Partansky
SIDEBAR: PUTTING CHILDREN IN THE MIDDLE
When Scott Manning and his wife Patricia were arrested while bringing a small amount of heroin and cocaine into Vermont from New York city they knew they were in trouble, but they didn’t know how much. That they might have to do some time was a possibility they were prepared to deal with, but that their home would be forfeited and their children threatened with homelessness was not in their reality.
Their case began in June, 1990, nearly six months after the Mannings detoxed, he from cocaine addiction and she from heroin. “Patty initially got hooked on prescription pain killers while recovering from a car wreck that left her with one side of her head crushed,” Scott Manning said recently from the Federal Prison Camp in Allenwood, PA, where he is serving a five year sentence. “She was in constant pain after they reconstructed her face, but the doctors were afraid she was becoming addicted and cut her off. So a friend used to give her dilantin.”
After the dilantin ran out one of the Manning’s friends started going to New York to buy heroin and cocaine, and pretty soon the Mannings were part of an addiction group. “I used the coke, Patty the H. When my friend got busted, he told me where to go and I started to make the runs for the group.”
Two years of addiction were enough for the Mannings and they decided to detox. Six months later, after the friend who’d been busted got out of jail, he appeared one day at the Manning’s house and gave them a bag of heroin. Four days later Scott and Patty decided to make a run to New York to pick up enough dope to get them through the summer. They were arrested with five grams of cocaine and six grams of heroin as they entered Vermont on the return trip.
Their case was turned over to the Feds, who proceeded with a civil forfeiture of the Manning home and 11 acres. Though the case was not dependent on a conviction the forfeit was stayed until the Mannings pleaded guilty to one count of conspiring to distribute narcotics—for which he got five years and she got three.
But 45% of the home belongs to the Manning’s two oldest children, Jessica and Alice, now 15 and 13, respectively. They were Patty’s from a previous marriage and the divorce settlement provided them with the share of the property. So while the Manning’s do their time, their kids worry about their house.
“My natural father Robert gave it to us,” says Jessica, “and the government wants to take it away. If they do they’ll sell it, and they’ll have to give us 45%, but we don’t want money. We want to keep our home.”
For Jessica the past two years have been a nightmare. “My parents are doing time for the thing that was apparently wrong, but we didn’t do anything wrong. On this property there’s a lot more than a house and a barn. It’s our home. My brother Matt and my sister Alena were born here. My grandparents live next door. I don’t see why they can take this house.”
The government initially wanted to take not only the home but the Manning children as well, threatening to put them into foster care until their parents were released from prison. “The whole thing is crazy,” says Jessica. “My parents never hurt us. They were never violent or anything.”
Actually, the Mannings consider themselves lucky: an agreement was eventually made that if a full time adult would live with the children they would be permitted to stay in the house as a family.
As cruel as it seems, the Manning case is hardly unusual. According to Jeffrey Steinborn, a defense attorney from Washington State, “Threatening children is on page one of the Drug Enforcement manuals. Not really, but it’s a given: ‘tell us everything or your kids are at risk.’ That’s typical.”
Several attorneys contacted by HIGH TIMES confirmed that children are frequently used as bait to prevent parents from fighting forfeiture. The way this is generally done is this: parents are busted for a narcotics violation. They are told there will be a civil seizure of their home or other property. Then they are offered a deal: if they don’t fight the forfeiture only one parent—generally the father—will be criminally prosecuted. If they decide to fight, however, both parents will be prosecuted, and, if convicted, it is almost certain that their children will be put in foster care while they serve their sentences. Additionally, it is within the province of the court to declare persons convicted of drug charges unfit parents and take their children away permanently. Faced with such a possibility few parents in that circumstance choose to fight the forfeiture.
As for the Mannings, there has been no final decision on the house as yet, and the local townsfolk have rallied to their side, holding benefits to keep the bills paid while they’re away.
LESLIE OHTA: A PROSECUTOR ABOVE THE LAW
Between 1984, when she took over the lead post in the Connecticut asset forfeiture unit, and March, 1992, when she was reassigned, assistant US District Attorney Leslie Ohta oversaw the forfeiture of 26 million dollars worth of assets. During her reign, Ohta was so successful that she frequently lectured other prosecutors on asset forfeiture. “She was a killer prosecutor,” says John R. Williams, a defense attorney who often tangled with her, “just merciless. One local attorney used to say that if he ever needed a heart transplant he’d want hers, because she’d never used it.”
But in 1992, Ohta’s reign of terror came to an abrupt halt when her own son, Miki, was arrested for a felony sale of LSD and possession of marijuana. The sale was to a confidential informant, who purchased 50 hits of acid with $90 of police money on Sept. 3, 1991. According to the Connecticut Law Tribune (Mar. 23, 1992), three weeks later the informant set up a second buy, “which led to the arrest of Miki Ohta, who was smoking marijuana with his friends, one of whom was also carrying two doses of LSD. On both occasions Miki Ohta was driving his family’s 1986 Chevrolet Blazer, registered to his parents.”
It was not Miki Ohta’s first brush with the law. Affadavits show that in 1989 a confidential informant bought 1/4 ounce of marijuana from Miki Ohta out of the Ohta home, and that he was also investigated for selling LSD. He was not arrested at that time because police “did not want to compromise an ongoing investigation.”
All told Miki Ohta, who has been in three substance abuse programs, has a total of six arrests, at least three involving drug possession or sales connected with the Ohta family property. Nonetheless, Ohta never thought of instituting a forfeiture against her own property. Neither did her boss, US Attorney Albert S. Dabrowski. “No parent who learns about a child’s substance abuse problem and takes constructive steps to put an end to it need worry about the federal government taking their property.”
Defense lawyers who have tangled with Ohta disagree. One of John Williams’ cases involved the Gonzalezes, an elderly Hispanic couple who live in a tiny house in the poorest section of New Haven. “There were about 20 people living there, grown kids and their children, nephews and nieces. It was either there or the street, and they worked all the time to keep the mortgage up. Well, two of their grown sons are junkies who’d been arrested in the house numerous times, and the parents had done everything in their power to have their sons deal with their drug problems, including physically taking them to drug therapy sessions. But instead of a little understanding, under Ohta’s command not only was a forfeiture judgement brought against the house, she tried to evict the whole family two weeks before Christmas!” A compassionate judge stayed the eviction order and the house, assessed at only $20,000, remains in litigation.
Then there was the 1988 case involving the Derbacher’s, a couple in their 80s from Hamden, CT, whose grandson Julian was arrested for selling marijuana out of their house. Despite Derbacher’s claim that he had no idea that Julian had marijuana in his room, Ohta initiated and successfully forfeited the Derbacher’s home of 39 years.
Neither the Derbachers nor the Gonzalez family were exceptional cases for Ohta. According to Hugh Keefe, a Connecticut defense attorney, “Leslie showed no compassion. If she could win the case she would take it. Period.”
Since her son’s latest arrest, Ohta has been permanently reassigned to financial and tax fraud cases. “I think her own people were happy with finding a reason to get rid of her,” says Keefe. “Parents shouldn’t have to worry about their kids doing drugs and having to think about Uncle Sam taking their property as well. Just because the law technically permits it, someone with some perspective ought to be saying ‘We’re not going to hurt these people just because their kids fucked up.’”
CONGRESS HEARS OF FORFEITURE ABUSES
by Peter Gorman
On Sept 30, 1992, the Congressional Oversight Committee held hearings into abuses in the Justice Department’s Asset-Forfeiture program. The hearings, chaired by Congressman John Conyers of Michigan, were the first federal hearings held into forfeiture that allowed victims of the program to testify.
The committee, short on time, heard only three stories from they had available. They included the case of Carl and Mary Sheldon, who sold their home to a man whose property, including the home he’d bought from the Sheldon’s (who held the mortgage) was subsequently seized, sending the Sheldon’s into costly forfeiture limbo; Willie Jones, a landscaper who had $9,600 seized by the DEA—despite having no drugs—at a Nashville TN, airport because he fit a drug-courrier profile; and Harlan Vander Zee, a Texas banker who went to the IRS about a questionable transaction, was told it was legal, and then saw the bank he worked for seized for money laundering based on the transaction he’d inquired about.
After listening to the witnesses, Conyers’ pledged that his committee would continue to investigate the abuses fostered by the forfeiture laws. Conyers also suggested that if new laws were needed to correct forfeiture abuse, he would work to see that appropriate legislation was introduced in the House.
Cary Copeland, the director of the executive office of the Justice Department’s Asset-Forfeiture program, countered the testimony of the witnesses and noted that of nearly 200,000 seizures done by the Justice Department, few people had complained. Copeland, who does not believe there are any victims of wrongful forfeiture, only sore losers, also noted that “none of the people here”—the Sheldon’s, Willie Jones, or Vander Zee—”have anything to complain about,” with regards to their cases, despite the outlandish behavior of the Justice Department in each of the three cases.
Defense attorney Brenda Grantland, who worked with the Sheldon’s and is one of the leading forfeiture attorneys in the country—as well as the editor of the FEAR newsletter—was the only defense attorney to speak. Asked how she felt the hearings went, she said she was satisfied. “The hearing did not turn into the white wash I was afraid it might turn into,” she said.
The hearings, which began on the final day of the Fall session of Congress will be scheduled to continue when Congress reconvenes. No date for the additional hearings has been set.SIDEBAR:
ORGANIZATIONS FIGHTING TO END FORFEITURE ABUSE
STOP FORFEITURE OF CHILDRENS’ HOMES
PO Box 91
Waterbury, VT 05676
Founded by Dr. Kathleen DePierro and Scott and Patricia Manning. “Our group is dedicated to changing the law to prevent children from being displaced from their homes by forfeiture,” says Dr. DePierro. Last fall, the Vermont State Medical Society, representing over l,000 physicians, endorsed the goals of Stop Forfeiture of Childrens’ Homes.
FEAR (FORFEITURE ENDANGERS AMERICAN RIGHTS)
PO Box 513
Franklin, NJ 07416-0513
Founded by Kathy Schrama, the New Jersey housewife who’s house was seized after a neighbor accused her of stealing $501 worth of UPS packages from her stoop, FEAR is compiling information related to the abuses of asset forfeiture and organizing a National Forfeiture Lawyer directory.
FURTHER READING ON FORFEITURE
Spectre of Forfeiture by Judy Osburn (Ben There)
Published in 1991 by
PO Box 1900
Frazier Park, CA 93225
THINGS CHANGE AND STAY THE SAME
by Peter Gorman
During the past several months intense media coverage of the abuses of state and federal civil forfeiture laws by prosecutors and police around the country has begun to get the attention law makers, provoking several changes—some realized, some proposed—in the forfeiture statutes. Whether those changes will prove to be cosmetic or meaningful remains to be seen.
Asset-forfeiture laws were designed to take the profits out of crime by permitting the seizure of proceeds derived from criminal activity. At first glance it’s a reasonable proposition: If someone who earns millions dealing in stolen art gets caught they’ll lose the property and cash they’ve amassed through their criminal activity. The same would apply to someone selling heroin, earning funds through kidnap/ransoms, or generating money and property through any other criminal activity.
But in application, the law is neither reasonable nor uncomplicated. First off, there are three kinds of forfeiture:
—Criminal forfeiture involves proving someone guilty of criminal activity and then going after the money involved in that enterprise.
—Administrative forfeiture occurs when a government agency assumes proprietorship of unclaimed property. One scenario: Police bust a crack house. After the bust a bag holding cocaine and money is found by police outside the crack house, and there are no prints on the bag or its contents. When no one claims the bag it’s administratively forfeited.
—Civil Forfeiture involves the arrest of property tainted by criminal activity. For instance, a man in a car is pulled over for a broken headlight. While making a license check the policeman smells marijuana in the car, investigates and discovers a half-an-ounce. In most states it won’t get the driver more than a night in jail, and in nearly a dozen it’s not an arrestable offence, but civil forfeiture allows the car to be seized anyway, because the car was in proximity to a criminal act and therefore tainted by it. Civil forfeiture is where the bulk of forfeiture abuse by law enforcement arises.
While civil forfeiture laws have been on the books since the US was founded, they didn’t become a major issue until then-President Reagan’s Comprehensive Crime Bill of 1984 directed civil forfeiture to be energetically persued in his Zero-Tolerance War on Drugs. The key provision in the bill was one which authorized the proceeds from forfeited items—either through their sale, or, in the case of cash, by a straight cut—to be returned to the police and prosecuting agencies involved in the forfeiture. A second provision of that 1984 bill allowed the agencies involved to turn over as much as 25% of the value of forfeited items to snitches. Most states followed the example of the Feds in writing their own forfeiture statutes.
Those provisions—and new ones added to every Crime Bill since 1984—prompted a change in the priorities of many local and federal police agencies from crime fighting to forfeiture revenue-production. Additionally, they created a class of professional forfeiture bounty hunters.
Current figures indicate that both Federal and State governments each generate roughly $1 billion annually from civil forfeiture. Figures also show that nearly 80% of those who lose property are never even arrested. (For a comprehensive look at civil forfeiture, see: Forfeiture: The Seizing of America, parts 1 and 2. HIGH TIMES, Nov. and Dec. ‘92).
KEY AREAS OF CORRUPTION: Because forfeiture monies are returned to the people who generate them—and have been used for everything from guaranteed overtime pay to the building of gymnasiums in police stations—the most dangerous threat to civil liberties from forfeiture is the corruption of police aims in the face of potential forfeiture windfalls. Why bother with a dangerous criminal who has no assets when someone growing marijuana is the owner of a forfeitable home? And if someone is busted who has no assets but knows people with some, why not turn that person into an informant? Besides getting off the hook themselves, informants stand to earn 25% of all funds generated by their information. In 1991, the Justice Department alone paid professional drug forfeiture-informants more than $41 million; state and local authorities millions more. One such professional drug informant earned $780,000 in 1991. Informant forfeiture payments are not subject to taxation.
During the past several years, the lure of forfeiture money has led several police agencies around the country to act on utterly false information from informants looking for a piece of the forfeiture pie. Several of those cases have led to shootings of innocent people. Among them is Donald Carlson, a vice-president of Anacomp Inc., a Fortune 500 company, whose San Diego home was stormed by Customs agents last August. Carlson, who thought he was being robbed, fired at the undercover agents, who returned fire. Carlson was critically wounded in the exchange. No drugs were found in the house. Carlson survived and is currently suing the Federal government for $20 million. The informant who provided the false tip has been indicted, but no substantial action has been taken on the officers involved.
In another case of false-tip shooting, 61-year-old Donald Scott, a reclusive millionaire from Ventura, CA, was killed when 26 officers stormed his ranch in an October, ‘92 raid. Tipped that Scott was growing marijuana, the officers arrived at the ranch after dark and surprised Scott’s wife. Hearing her cries, Scott confronted the officers with a gun and was fatally shot. No marijuana was found on the ranch. No action has yet been taken against the informant or the officers involved in the raid.
Another key area of corruption involves the individuals to whom forfeiture funds are distributed. While funds generated by forfeiture must be used to fight criminal activity, the way those funds are actually spent is left the discretion of the person receiving them. Typical of the hundreds of cases of forfeiture fund-misuse which have come to light in the past few years are:
—IN TEXAS, Sheriff James Hickey of Nueces County—whose forfeiture fund has at times exceeded $1 million—saw fit to award himself a 10 year retroactive pay increase at $400 a month, and wrote a $48,000 check to himself three months before his term expired on Dec. 31, 1992. Additionally, Hickey wrote a check for more than $100,000 to his Lawyer, Bradford Condit, as advance payment for 28 months worth of legal services which didn’t kick in until after Hickey’s term expired. Hickey’s case is currently being investigated for possible impropriety.
—IN SOUTH CAROLINA two former Myrtle Beach officers are currently under indictment for the alleged embezzlement of more than $100,000 of unaudited forfeiture funds.
—IN SUFFOLK, NEW YORK, District Attorney James M. Catterson has used part of the $3 million dollars in forfeit funds he’s accrued since taking office in 1990 for servicing and bodywork on the BMW 735i that was seized from a drug dealer and which he now uses in place of a county car. While there is nothing illegal about Catterson’s case, it nevertheless caught the eye of county officials, who recently proposed a plan that future funds be audited before they’re spent.
Because of some of these outlandish cases, however, steps are being taken to look into possible abuses of forfeiture law. Among them:
—THE SUPREME COURT HEARS A CASE
On February 24, the Supreme Court voted 6 to 3 to rebuff a Justice Department’s claim to the home of a New Jersey woman who purchased the property with what the Government claims were the proceeds of marijuana dealing on the part of her then-boyfriend, Joseph Brenna. The woman, Beth Ann Goodwin, purchased the Rumson, NJ home in 1982, after receiving a gift of $240,000 from Brenna, who was indicted on drug-trafficking charges in 1989. The Government instituted forfeiture proceedings on the house shortly after the indictment. Goodwin claimed she had no idea that the money was connected with marijuana and sought to quelsh the forfeiture on grounds that she was an “innocent-third-party-owner.” The Government’s contention was that since the home was bought with the proceeds of marijuana sales, it was automatically forfeitable, and the innocent-owner defense did not apply
The ruling by the high court does not prevent the Government from proceeding with forfeiture action on the house, but does establish Goodwin’s right to fight the action as an innocent-owner. Whether she successfully proves that she had no knowledge that the money used to purchase her home—which she shares with her three children—was earned in the marijuana trade will be decided by a lower court.
Despite the narrowness of the decision, it is the first sign that the Supreme Court may be taking a second look at the breadth of the federal forfeiture statutes as they currently stand. Until this decision the Court has consistently sided with the Government in defending forfeiture.
Two other appeals involving forfeiture will shortly be decided by the Court which may be more telling, since they both involve the idea of proportionality, which currently has no bearing in forfeiture cases. The first, a criminal-forfeiture case, was argued in January, ‘93—the decision has not yet been handed down—involves the Government’s right to “forfeit an entire chain of adult bookstores and movie houses after finding several obscene items for sale [in the bookstores]” according to a New York Times report published on Feb 25. The second, to be argued in April, is the civil forfeiture case of Austin v. US, which involves—according to the same NY Times report—“a North Dakota man [who] lost his car repair business and his mobile home after selling two grams of cocaine to an undercover agent.” Both cases, should the Supreme Court rule in the defendants’ favor and against the Government, could have a huge impact on forfeiture law, since they would make proportionality an integral part of all forfeiture cases. According to Brenda Grantland, a noted forfeiture attorney, “If the Government has to worry about proportionality they’re going to have to go after the bad guys and leave the minor players and casual users’ assets alone. Basically it will force them to do what they should have been doing in the first place.”
CONGRESSIONAL HEARINGS ON FORFEITURE SET
Congressman John Conyers (D-MI), head of the Legislation and National Security Subcommittee of the Committee on Government Operations, has tentatively scheduled hearings on forfeiture for early May. Conyers, who held a one day hearing into forfeiture abuse last Fall, was so amazed at the number and quality of abuses submitted to his committee that he vowed to reopen the hearings in the Spring. Police corruption will be the focus of the hearings. Conyers is thus far the only Federal legislator who has been willing to tackle forfeiture.
CHANGES IN STATE LAW:
FLORIDA LEADS THE WAY (904-488--4441 for Chiles Office 487-1963)
Spurred on by the embarrassment brought about by a series of articles published in the Orlando Sentinal which detailed the patently racist and frequently illegal seizures made by state police on highway I-95—seizures which originated with car-stops based on drug-courrier profiles—Governor Lawton Chiles held state commission hearings into forfeiture and the possible abuse of state laws. (Jo Miglino 904-488-5394)
Held in August, 1992, Chiles’ commission heard what, and made recommendations which what, . Chiles’ commission seemed to set the tone for other governors to hold similar hearings, and several followed suit:
IN KANSAS, the Supreme Court ruled last November that primary residences may not be seized by the state in civil forfeiture cases with the exception of seizures made for tax liens which are more than three years old; debts incurred in the purchase of the home and land; and debts incurred in improving the home or land. The court ruled favorable in the case of Clarence Gilbert, a man whose home, situated on 10 acres, was seized following his conviction for growing two marijuana plants. The law does not apply to secondary residences or people who own rental property which is not their primary residence.
In an effort to circumvent the ruling, prosecutors are pushing for more and more federal intervention—adoption—in similar cases, since Federal law—which allows the seizure of primary residences—supersedes state law.
IN CALIFORNIA, both the San Francisco and Santa Cruz Democratic Parties’ Central Committees recently passed resolutions supporting forfeiture repeal or reform “to protect the rights of the innocent, secure personal property rights, and discourage police corruption.” The exact reforms being sought have not been specified, but it is hoped that the resolution will become part of the state democratic party platform in 1994, making forfeiture reform a party priority statewide.
Additionally, State Assemblyman John Burton (D-San Francisco) is expected to unveil a bill in the state assembly which is anticipated to include both a conviction and proportionality clause.
IN MISSOURI, legislation introduced by State Senator Wayne Goode (D-St. Louis) is making its way through the senate which would require felony conviction prior to completing a forfeiture. Senator Goode’s bill would also require a circuit judge’s approval before a local agency could ask a federal agency to adopt a local forfeiture case. The latter portion of the bill is important because the Missouri Constitution forces all local and state forfeiture revenues to go to the state public school system, rather than be returned to local law enforcement, a regulation which does not apply to funds shared between state and federal agencies.
Most local and state agencies have subsequently been routinely inviting federal agencies to participate in local cases in an effort to ensure they get a cut of the funds, and Goode’s bill’s provision would eliminate that circumvention of state law.
Interestingly enough, a second piece of legislation making its way through the Missouri Senate aims to amend the State Constitution so that local authorities would share forfeiture revenue with the public school system on a 50-50 basis.
IN NEW JERSEY, home of the most publicized non-violent, non-drug related forfeiture case of the past 10 years—Kathy and Mark Schrama, who had their home forfeited after Kathy was accused of stealing a neighbor’s UPS packages; they eventually got their home back after paying a fine and investing more than $50,000 in legal fees—New Jersey’s assemblymen Gary W. Stuhltrager, a Republican and Chairman of the Assembly Judiciary Committees, held hearings on March 4 to decide whether a bill, sponsored by assemblyman E. Scott Garrett, (R-Sussex) which would make a criminal conviction a necessary prerequisite to forfeiture should be recommended to the State’s General Assembly for a vote. The bill would also require the courts to conduct a proportionality analysis in forfeiture cases. Though the assembly judiciary committee voted 4 to 3 to pass the bill on to the general assembly, no date has yet been set for a general assembly vote.
THE MORE IT CHANGES, THE MORE IT STAYS THE SAME
But while several states look to be making some progress in revamping their civil forfeiture laws, lawmakers, police and prosecutors around the country, at both the state and federal level, are searching for new ways to milk the forfeiture cash cow. On the Federal Level, bill #H.R. 4930, first introduced in 1992, is about to be reintroduced to Congress. The bill, “provides for forfeiture of property involved in the commission of Federal health care offences and to establish the Health Care Fraud Forfeiture Fund in the Treasury.” Among its provisions, “any property, real or personal [could be forfeited] that—is used in the commission of a Federal health care offense; or constitutes or is derived from proceeds traceable to the commission of a Federal health care offense.” Among Federal health care offences are “fraudulent or false billing for a medical product, service, or test; inflated cost of a service or procedure provided by a health care provider; unnecessary admission of a patient to a health care facility; or a kickback ack to a health care provider on a sale of any medical product, including durable medical equipment, or any medical service.”
On the state level:
IN COLORADO, drug paraphernalia laws are being used to fatten the forfeiture cash cow. In one such 1991 case—known as Operation Pipe—several Denver, CO store owners were raided by US Customs agents at the behest of US Attorney Michael Norton. According to a July 19 report in the Rocky Mountain News, the “agents entered stores suspected of selling paraphernalia and seized inventory, records and accounts.” Subsequent to the busts, government attorneys havn’t charged any of the businesses with crimes unless the owners agreed in advance to plead guilty to get back property. “Merchants who defied the threats face the loss of homes and businesses, but their records remain clean.” In the case of Jim Janus, owner of Denver’s Acapulco Smoke Shop, agents seized $170.000 in personal and business bank accounts. Norton’s prosecutors subsequently offered to return $70,000 if Janus would plead guilty to a charge of interstate transportation to market drug paraphernalia. When Janus refused the government seized his home and warehouse. Janus is still fighting the seizures. Norton justifies the tactics by claiming his office is keeping drug paraphernalia, and by extension, drugs off the streets.
IN INDIANA last year state police, recognizing the success of Operation Green Merchant—in which records seized from stores which sold hydroponic equipment through HT were used to identify possible growers to target for forfeiture—opened their own indoor cultivation store, Circle City Hydroponics. Named Operation Smokescreen, the police videotaped all of their transactions, and later raided their customers’ homes. Nearly 100 arrests were made for marijuana cultivation and the police have since been quietly persuing property forfeiture in several of those cases.
Subsequent to Operation Smokescreen, several stores and seed banks have been opened around the country recently which look to be DEA. Readers who make purchases at grow stores are urged to use cash, not to provide an address for delivery or for free catalogues, and to double check that the store they make their purchases from is not videotaping their transactions or their licence plates.
IN CALIFORNIA, the Maddy Bill, a bill proposed by State Senator Maddy which would broaden that state’s forfeiture statutes—and which didn’t pass last year—has been reintroduced. Among its provisions, the bill would permit the forfeiture of real property based on the affidavit of a single informant; and children’s statements to a Police Officer teaching a school drug awareness class would be accepted probable cause for a search—and possible subsequent seizure—of the child’s parents’ home.
IN MASSACHUSETTS, a bill recently introduced by State Senator William R. Keating, (Senate bill # 189) would reduce the quantity of marijuana necessary to forfeit a vehicle under state law from 10 pounds to one pound.
IN WASHINGTON, D.C., ten car dealerships have recently been seized subsequent to cash transactions over $10,000 which were not reported to the IRS. Several had been in business for years. “Instead of prosecuting the salesmen who are involved in the,” says Brenda Grantland, “they’re seizing whole dealerships. I expect this to happen all over the country because look at how much money they can make?”
SUPREME COURT TIGHTENS GRIP ON FORFEITURE
But States Will Define Terms
by Peter Gorman
In a June 28 decision that is expected to limit the Government’s authority to seize private property in both civil and criminal cases, the Supreme Court unanimously ruled that the Constitution’s Eighth Amendment protections against both ‘cruel and unusual punishment’ and ‘excessive fines’ are applicable in forfeiture cases. The decision will allow some forfeiture defendants to argue that certain property seizures are Constitutionally excessive in relation to the criminal activity for which they are being seized.
Until now prosecutors have successfully argued that forfeitures are neither punishment nor fines and therefore the Constitutional protections did not apply. That logic has allowed property even vaguely tainted by criminal activity to be forfeited, regardless of whether the property was material to the crime. The high court’s decision for the first time brings to bear the concept of ‘proportionality’ on forfeiture cases, providing defense attorneys with a new and powerful weapon with which to challenge seizures.
But the Court did not attempt to specify what would constitute either ‘cruel and unusual punishment’ or ‘excessive fines’ in relation to seizures, instead remanding those decisions back to the lower courts to decide. Defining those terms on state levels may take years, and the possibility exists that what one state considers an excessive seizure another will not.
The high court’s decision was rendered in relation to the case of a North Dakota man, Richard Austin, who lost his mobile home and car repair business in a civil action after he pleaded guilty to selling two grams of cocaine to an undercover policeman. Lawyers for Austin had argued that the loss of his home and business were clearly a form of punishment and therefore subject to the Constitutional protection against fines disproportionate to the offence. The Government had argued that the seizure had not been punitive but ‘remedial,’ and that all of Austin’s property was ‘tainted’ by the illegal cocaine sale.
Justice Harry A. Blackmun, writing the majority opinion, responded in part that “The purpose of the Eighth Amendment...was to limit the Government’s power to punish. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the Government’s power to extract payments...”
After a discussion of the historical nature of forfeiture as a form of punishment—as well as a remedial action meant to remove “dangerous and illegal items from society”—Blackmun concludes “forfeiture under these provisions constitutes ‘payment to a a sovereign as punishment for some offence’...and as such is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.”
In a separate and concurring opinion, Justice Antonin Scalia added that “forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly regarded as an instrumentality of the offense—the building, for example, in which an isolated drug sale happens to occur...The question is not how much the confiscated property is worth but whether the confiscated property has a close enough relationship to the offence.”
Justice Anthony Kennedy—joined by Chief Justice William Rehnquist and Justice Clarence Thomas—also wrote a separate but concurring opinion in the case.
The court did not say that Austin’s case was definitively excessive, but remanded it back to a lower court for review.
A second case the high court decided to piggyback onto the Austin decision was that of Ferris Alexander, a businessman from Minnesota, who had a chain of adult bookstores movie houses seized in a criminal (RICO) forfeiture action after a handful of books and videos were judged to be obscene.
Alexander’s lawyers argued that his First Amendment right to free speech had been violated when his entire inventory—including non-obscene material—were seized. The Court ruled, by a count of 5-4, that Alexander’s free-speech rights had not been violated, but noted his case may reflect a constitutionally-excessive fine and returned it to the lower courts for further consideration.
The decision marks the third time in the past several months that the court has seen fit to put constraints on the current application of forfeiture law. In a case decided on Dec. 14, 1992, the court ruled that in cases where property owners are appealing forfeitures their appeals may proceed even if their property has already been sold by the Government. And in a second case, decided on Feb. 24, 1993, the court ruled that persons legally taking title to property which later proves to have been tainted by criminal activity—prior to the purchase and without their knowledge—may assert an ‘innocent owner defense.’
FORFEITURE SPECIALISTS RESPOND
Response from the legal defense community was excited but cautious. Brenda Grantland, a member of the board of directors of FEAR (Forfeiture Endangers American Rights), mused that while “this will certainly help those genuinely disproportionate cases, it won’t necessarily help the bulk of forfeiture cases because the court, in not defining proportionality, has opened the door to years of litigation. Worse, different states will have different standards, unless we can get legislation in place which will standardize ‘cruel and unusual punishments’ and ‘excessive fines.’”
Lawrence J. Nixon of Florida, a forfeiture specialist and former prosecutor, noted that “The only problem I have with the decision is in the RICO case (involving the adult book store owner). Having been a prosecutor, I don’t see why the government wouldn’t make three small buys from a dope dealer now and then go ahead and make a RICO case to take property, rather than taking it in a civil forfeiture action. The Court had a real opportunity to make a case against the forfeiture of assets here and they seized only part of it.”
Ron Sinoway, a Humboldt County lawyer who works with the Drug Police Foundation, commented that “this is a tremendous blow to the whole forfeiture program. And if you couple it with the other major recent decision in forfeiture law—the affirmation of the innocent-owner defense—the onus now falls on the government to be very careful with it’s cases. What this really does is deliver a message from the conservative court to the government everywhere that they are thieves, that they are stealing property, and that it must stop.”
And Dan Veits, Vice-Chair of the NORML National Board and President-elect of the Missouri Association of Criminal Defense Lawyers suggested that while he hadn’t studied the full text of the decision yet, “my understanding of the decision is that the court ruled that a forfeiture can violate the Eighth Amendment, both in terms of cruel and unusual punishment and excessive fines. Calling a punishment civil rather than criminal in forfeiture prosecutions will no longer allow prosecutors to circumvent the Bill of Rights.
“We hope that this will bring about a fundamental change in the way that the government behaves with regard to forfeiture, particularly police and prosecutors in their quest for the acquisition of property from small time offenders.”
While the Supreme Court’s decision must be hailed as a blow to the outlandish behavior of a number of prosecutors on both the state and Federal levels, it will not stop forfeiture abuse. State’s will make those decisions. But by unanimously agreeing that forfeiture falls under the protections of the Eighth Amendment, the conservative Court has opened the door for members of both the House and Senate to speak out on forfeiture without fear that they will be viewed as liberals intent on undermining the Justice Department’s favorite weapon in the War on Drugs.
RELATED NEWS: TWO FORFEITURE BILLS INTRODUCED IN CONGRESS
The Supreme Court’s decision, while not entirely unexpected, was a surprise in its unanimity. But the Court is not the only branch of government looking into the way prosecutors have parlayed forfeiture into a multi-billion dollar business. Two bills have recently been introduced to Congress which would also help to bring forfeiture under control.
The first, introduced by Congressman Henry J. Hyde (R-IL) would reform forfeiture law in several key areas, among them: The bill would make it the government’s responsibility to prove that property being seized in civil cases was forfeitable, unlike the current system in which the property owner must prove the assets being seized are not forfeitable. The Hyde bill would also allow claimants to sue the Government for damages to property while it is held by law enforcement, and provide court appointed lawyers for indigent people in civil forfeiture cases.
Congressman John Conyers (D-Michigan), the only member of either the House or Senate to hold forfeiture hearings, is also preparing a bill to curb forfeiture excesses. Though details of the bill have not yet been released the early word on it suggests that it will include both a proportionality clause and a clause demanding a criminal conviction before prior to the initiation of forfeiture proceeding.