Forfeiture Reform Legislation: Will it be Now, or Never?

On May 3, 1999, at the Cato sponsored conference, "Forfeiture Reform: Now, or Never?", Representative Henry Hyde announced that he was, once again, introducing Forfeiture Reform legislation to Congress. For six years, he has been trying to get legislation passed that would provide some relief against federal forfeiture abuses.^[1] He has repeatedly hit a wall of opposition from various government agencies and politicians who feel they would have a lot to lose if his bill passed.

He is giving it one more shot. I hope all of you will join me in giving all the support you can to the passage of this bill. The fact that the "Know Your Customer" affront to our liberties was turned back by the "Netters" proves that we have such power!

The purpose of this document is to provide you with background material on forfeiture abuse, resources for further information, and suggestions on what you should do about it. Other online summaries of this issue -- that I know about -- are available at:

• ACLU Action Alert: Law Enforcement Abuses Authority to Seize Property
• The Drug Policy Foundation: HR 1658 Alert

Update on Forfeiture Reform Legislative Effort

After overwhelming approval of Representative Hydes bill, H.R. 1658, the bill was sent to the Senate's Judiciary Committee. And there it has set to this date. Even with an almost 10 to 1 approval by the House, the Senate's leaders have indicated that this bill will never pass the Senate in its current form (see the Cato Forfeiture Conference proceedings at http://www.cato.org/realaudio/ccs99/index.html).

To achieve this end, the strategy used to kill forfeiture reform that was so effective in the House for so many years, will now be used in the Senate: substitute a "trojan horse" bill with the same name! To that end the "Gang of Four" -- Feinstein, Cleland, Schumer, and Biden -- who's obsessions seem to be "Give Nazism a chance in America", has taken the DOJ authored bill, originally presented to the House as HR 1965, moved a few words around and submitted it to the committee as S. 1701, "Civil Asset Forfeiture Reform Act of 1999". So now we have a bill that makes matters worse with essentially the same title as Hyde's bill that would have curbed Asset Forfeiture. It is not hard to see that by this ploy, we could very well end up with a bill that increases the evils of forfeiture, while all along the public is thinking that genuine reduction of forfeiture abuse is its goal.

The text of this bill, along with a detailed analysis has been put online by Brenda Grantland at the FEAR site.

• Why Should We Concentrate on Forfeiture when it is just one of Many Governmental Abuses?

  When virtually every Constitutionally guaranteed right is being abused by our government, why should forfeiture abuse get major attention?

  A good question. We have a criminal justice system in shambles (almost entirely dependent on stings, snitches, and plea bargaining for any prosecution -- see "Win at all costs" by Bill Moushey) , we have the military involved in civil law and order (click here for the military view), our president makes war on countries around the world without Congressional authorization, citizens are being spied on constantly and are routinely searched without warrants, the right to keep and bear arms is being infringed and guns are being confiscated, carrying of any cash is evidence of wrongdoing, etc., etc. So, why forfeiture abuse?

  There are many reasons, two of which will be explored here due to their extreme importance: 1) The immediate opportunity to do something about the forfeiture problem with legislation and 2) the realization that you cannot have liberty without the right to private property.

  This essay's purpose is to emphasize reason number one. This is not the place to elaborate on reason number two but if you are interested, it is discussed in some detail in my essay, "Property and Liberty: You can't give up one without losing the other".

  Just in case some of you do not know about forfeiture abuse by the government, I will provide a short summary. If you are already well informed on this issue then please skip down to "How You Can Help".

• Background on Government Confiscations

  Several excellent online documents provide information on the confiscation of property by the government in all its gory details (See resources, below). But for now, I suggest that you read James Bovard's "Seizure Fever: The War on Property Rights" which is short and to the point but with extensive references.

  Briefly, the most important issues in asset confiscation are:

  • Starting in 1970 and up to the present time, statutes have been created that allow the government to confiscate private property for real or imagined infringements of law. It started with illegal drug activity, but has now been expanded to over 300 "offences".

  • There are four major types of forfeiture; Summary, Administrative, Criminal and Civil.^[2] I will describe each briefly:
    • Summary
      Summary forfeiture is the process by which property is seized and forfeited without any notice or hearing. This is the procedure used for seizing contraband.

    • Administrative
      Administrative forfeiture is the process by which property may be forfeited to the government by the agency that seized it, without judicial involvement. This procedure is routinely used by Customs and the IRS. Federal law prohibits the use of this procedure for real property but does allow its use against any other property (limited to $500,000 in value for certain types). Any property seized becomes an administrative forfeiture if the forfeiture victim does not properly contest the seizure.

    • Criminal
      Criminal forfeiture is an in personam judicial action, part of the sentence imposed upon conviction for certain criminal offenses in which property is wrongly used or acquired. We have little issue with criminal forfeiture since the accused is afforded all of the protections of the Bill of Rights -- well, at least in theory.

    • Civil
      Civil forfeiture is an in rem judicial action in which the property itself is accused of having committed a crime or is in someway associated with the commission of a crime. Strangely, the process is governed by the Supplemental Rules for Certain Admiralty and Maritime Claims! This fact is an indication of the historical origin of this procedure and the extend that the government will go in expanding the application of a law beyond its original intentions -- an important fact to ponder anytime a new law is being proposed!

      Of the various procedures, civil forfeiture is considered the most abusive and controversial, by far.

  • In civil forfeiture cases, the government does not provide legal representation to those who cannot afford an attorney. This is a very serious issue since the accused has usually been stripped of all property and financial assets which basically precludes the hiring of a lawyer.

  • Property obtained through forfeiture, including financial holdings, is generally turned over to the prosecuting agency rather than to the general fund. Of course this is a great encouragement for abuse, fraud and sloppy accounting.

  • Property can be seized on the basis of "probable cause" which is no more justification than is needed for a police search! Effectively, the arresting officer has become prosecutor, judge, and jury.

  • To get the property back, the forfeiture victim must challenge the seizure and must prove that the property was not involved in a crime. This is called "proving a negative" and is considered to be logical impossible.

  • The property while in custody of the government often deteriorates considerably in value due to neglect and depreciation. It might take three years or more for the forfeiture victim's case to come to trial. There is no recourse from the government for these losses.

  • If the government is wrong and the property is innocent, it can still cost the claimant five to ten thousand dollars in legal fees to get the property back. That is why most confiscations are under three thousand dollars and are never contested by the victim. It is reported that 80 percent of the forfeiture cases never have charges filed!

  • Informants, often convicted criminals, whose identities are kept secret, can earn up to 25% of the loot seized by the government. Some informants have made over a quarter of a million dollars in one year! Snitching is big business in the USA!

  • Property can be forfeited under state or federal law. If state law enforcement personnel find it more lucrative to prosecute the case under federal law, they may do so by using federal "adoptive forfeiture". This allows the thwarting of state laws that require that forfeiture proceedings go to schools or the general fund instead of to the cops, for instance. See the expose by Karen Dillon of the Kansas City Star on this abuse in Missouri.

  • The government defends the use of forfeiture as a "powerful weapon against drug-related crime" suggesting that without it their job would be very difficult. Two questions immediately come to mind: 1) Are they saying that the disastrous failure of the Drug War could have been even worse? and 2) If they find this Medieval law so useful, have they considered public hanging, the torture rack and burning at the stake?

  • The US is now promoting forfeiture around the world and has signed treaties with every major country to share the loot so taken. England must think it is a little strange to see these ancient English laws being promoted back to them when the Revolutionary War was fought in large part over such issues!

• How You Can Help

  Representative Hyde's Forfeiture Reform Bill, H.R. 1658, (I have a copy online or you can go to the Thomas Site and then enter "HR 1658" in the bill number search box) passed the House on June 24, 1999. Your action is urgently needed now to support the passage of this bill by the Senate and approval by the President. You need to contact your representatives right away with letters, phone calls, personal visits, faxes, email, whatever. The best appropach is to contact your representative's district office by fax and phone call.^[3] Email is the least effective.

  Further, it would help even more if you can get the interest of the news media on this issue. Letters to the Editor will help, but getting actual news stories would even be better. Call them -- maybe they will listen to you.

  • Links to Resources

    To be most effective, you need to understand the issues to the best of your ability. This essay is just an introduction. Here are a few other resources (there are many more on the internet -- just search for "asset forfeiture":
    • The Forfeiture Endangers American Rights (FEAR) site for an extensive list of essays, legal documents and forfeiture victim assistance.
    • My page on Forfeiture Resources.
    • Mr. Casella, Assistant Chief, Asset Forfeiture and Money Laundering Section of the U.S. Department of Justice, expresses the government's view.
    • Testimony from House of Representatives, Judiciary Committee on forfeiture abuse (June 11, 1997). (Can this really be happening in the USA? Does anyone care?)
    • ACLU's excellent forfeiture page with resources for contacting your representative.
    • The Liberty Project, another activist organization fighting forfeiture.
    • The Department of Justices annual financial report (1996) listing all their loot and how they disburse it.
    • The Mining Company's informational resource on Search and Seizure.
    • Professor Greek's History of Forfeiture.
    • POLICING FOR PROFIT: THE DRUG WAR'S HIDDEN ECONOMIC AGENDA, by Eric Blumenson & Eva Nilsen.
    • "Predatory Public Finance and the Origins of the War on Drugs 1984-1989" by Benson, Bruce L. & Rasmussen, David W..
    • "Reforming Property Forfeiture Laws to Protect Citizens� Rights" by David Kochan at the Mackinac Center (excellent site!).
    • Henry Hyde's book, Forfeiting Our Property Rights, Cato, 1995.
    • A License to Steal, by Leonard W. Levy, Chapel Hill, 1996.

  • Links to Your Representatives (ha!)

    • Representative Henry Hyde (R-IL), a brave man and a true champion of freedom.
    • Representative Bob Barr (R-GA)
      He is a former U.S. Prosecuting Attorney.
      He was a co-sponsor of Henry Hyde's Forfeiture Reform Bill, H.R. 1658.
    • Senator Jefferson Bureaugard Sessions, III
      He is a former U.S. Prosecuting Attorney.
      Indications are that his solution to the crime problem is to first lock up everyone of the "Land of the Free" and then release those who can positively prove their innocence and does not have at least one unidentified informant that claims otherwise. His climb to political power has left a few lives in shambles -- see Lonnie Lundy's story wherein he explains his life sentence. A PBS interview here.
    • Senator Dianne Feinstein, (D-CA)
      A co-sponsor of Senator Hatch's "Juvenile Crime Bill", S. 254, and sponsor of several gun-grabbing bills. A strong believer in the principle that the state knows what is best for you and me.
    • Senator Orrin Hatch, (R-UT)
      Sponsor of the bill now in session, "The Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999", S. 254, a major attempt to set civil liberties back a few hundred years.
    • Senator Charles "Chucky" E. Shumer, (D-NY)
      A great gun-grabber, possibly sponsoring more gun control bills than anyone else in Congress. Also big on other civil liberties busting bills, typically identifies as "anti-terrorism", "anti-hate", etc. but always including provisions to gain further control over the citizens. Sponsor of the DOJ version of Forfeiture Reform, S.1701, now in the Judiciary Committee.
    • Senator Max Cleland, (D-GA)
      Co-sponsor of the DOJ version of Forfeiture Reform, S.1701, now in the Judiciary Committee.
    • Senator Joseph Biden, Jr., (D-DE)
      Co-sponsor of the DOJ version of Forfeiture Reform, S.1701, now in the Judiciary Committee.

1. Bills introduced by Rep. Hyde for forfeiture reform:

• H.R. 2417 - June 15, 1993
• H.R. 1916 - June 22, 1995
• H.R. 1835 - June 10, 1997
• H.R. 1965 - June 19, 1997(a compromise bill, having the support of the DOJ, but provided no real reform at all)
• H.R. 1835 - March 13, 1998 (reintroduced as there was strong opposition to H.R. 1965 from civil liberties organizations)
• H.R. 1658 - Passed overwhelmingly in the House on June 24, 1999, by a vote of 375 to 48.

3. Robert Bauman, former Congressman and present member of FEAR's board of directors, provides the following sage advice:

Just a word of advice: As a former Member of Congress myself, I can tell you that volume mail, (or email) on an issue counts for far less than a well-written personal letter or email, however brief. It's OK to use the ACLU letter as a guide, but personal letters or emails are far more impressive than a copy-cat message that comes in by the hundreds. Such messages are usually tied in a stack with a "total received" number on them, or just summarized as a number on a mail tally sheet.

Even more impressive is a visit to the congressman's home district office, or a phone call to that office and to Washington. If the call is made to the Washington office, a person should ask for the congressman's "Legislative Affairs Assistance" who handles the forfeiture issue. The caller should state that he or she is a registered voter in the (whatever) district of (state) and wants the congressman to support the bill. They should also ask for a written reply from the congressman in which he states his position.