The Continuing Forfeiture Scourge

The Wall Street Journal last year reported the results of a Delaware drug sniff:

Jorge Jaramillo, a construction worker, says he couldn’t afford a lawyer after more than $16,000 was seized from him last year in a traffic stop. “I had all of $20 left,” he says. In a Delaware federal-court filing, the Justice Department argued the money was related to drug dealing. It pointed to air fresheners in the car, which could mask the smell of drugs, and a fast-food bag containing cigar tobacco, which the filing said was often a sign that the cigar wrapper had been used to smoke marijuana. The filing also said a police dog had signaled that the cash carried residue of illegal drugs. Such “dog sniffs” are a common but controversial feature in forfeitures.

Jaramillo eventually got his money back — but only because one of the nation’s top forfeiture defense attorneys, David Smith, took his case on a pro bono basis. In most cases, defendants cannot afford the price of an attorney to fight the government to reclaim their property.

Federal judges have denounced dog sniffs as an unreliable test for drug trafficking at least since the 1980s. But federal prosecutors still invoke such tests to create a pretext to stuff the government coffers with private property. (The Supreme Court is currently deliberating on a case involving canine alerts.)

Growth industry

Asset-forfeiture provisions allow government agencies to legally commandeer lawfully acquired property. A Justice Department report explained, “Because of the rule known as the relation-back doctrine, the ownership of property is considered to have transferred to the sovereign at the time the alleged criminal act was committed. Ensuing court proceedings merely perfect the government’s interest in the property.” Former U.S. Solicitor General Kenneth Starr asserted, “The title that the United States acquires under [the relation-back provision] is immediate, unqualified, and irrevocable. [The relation-back doctrine] leaves no room for the creation, by means of a later transfer, of an interest … that is superior to the title conferred on the government.” In other words, if a person’s car or boat or the cash in his wallet is suspected by law-enforcement officials of having been involved in the violation of one of more than 100 federal and state laws with forfeiture penalties, the “sovereign” automatically owns the property. (In practice, once police make an allegation, it is the citizen’s burden to prove that the dollars in his wallet were never previously used in a drug or money-laundering transaction.) Nor can any number of legitimate transactions between private citizens ever nullify the government’s absolute title to the home, or car, or cash. This doctrine effectively means that the government has a carte blanche to seize anything that some government official can find a pretense to allege was involved in a crime in recent years.

The asset-seizure program is creating thousands of new police informants. The Justice Department usually gives a reward to persons who report suspicious activity that leads to a seizure. Anyone who pays cash for an airline ticket stands a chance of being reported as a drug dealer or an accomplice to drug dealing. The forfeiture program effectively turns many airline ticket agents and others into co-conspirators with the government against the privacy of the individual.

Forfeiture is the biggest growth area in law enforcement partly because federal and local police agencies usually keep a large amount of the booty they seize. In 1995 the town of Helper, Utah, created a policy designed to let police officers keep up to 25 percent of any cash or property they seize from suspected drug dealers. Helper’s mayor, Mike Dalpiaz, explained the program’s rationale: “Why not give our guys a reason to be more aggressive?” He observed, “This doesn’t cost the city a thing; it’s a wash. If the city gets a house through a drug forfeiture, and we put it on the market and sell it for $50,000, then by God the guy who made the bust is going to get a nice bonus check for his work.”

The mayor seems to think that the only reason that police are not sufficiently enforcing drug laws is that they cannot confiscate enough of their neighbors’ property. One might expect the city to next decide to save budgets by abolishing the salaries of the policemen and simply giving the cops the right to steal as much as they can carry from the citizens. Since surveys estimate that 10 percent of adult Americans use illicit drugs at least once a month, the Helper cops should be kept rolling in dough for a long, long time.

Helpless giant?

Law enforcement in the United States is devolving back towards conditions existing in England before Magna Carta, when rulers almost automatically seized all the assets of any person convicted of a felony. Such seizures spurred English barons to force King John to limit his powers in 1215. Unfortunately, some federal officials appear to prefer a pre-13th-century philosophy of government power. A 1992 solicitor general’s brief quoted the Old Testament and praised forfeiture as an “ancient punishment.”

Asset-forfeiture provisions presume that suspected violation of any of a long list of laws should give government officials the automatic right to impose instant economic capital punishment on a suspected violator. The asset-seizure controversy defines the line between the state and the citizen: what pretext does the state need to claim that the citizen’s property is actually the state’s? Increasingly, private property is something that government officials “tolerate” only until some paid informant comes along and gives them a pretext to seize it.

The Wall Street Journal reported that “top federal officials are pushing for greater use of civil-forfeiture proceedings.” This is the same trend that has been eating away at property rights for a long time. During the 1990s, a broad-based coalition fought for forfeiture reform. But the effort was shot down, thanks largely to Eric Holder, who today is the U.S. attorney general.

Many congressmen wanted to require a higher standard of proof before the government could commandeer private assets. But Deputy Attorney General Eric Holder wailed that “elevation of the standard of proof [for forfeiture] to ‘clear and convincing evidence’ would have a devastating effect on the government’s ability to establish the forfeitability of the property in complex money-laundering and drug cases.” Holder portrayed the Justice Department as a helpless giant at the mercy of any forfeiture victim who cast aspersions on the government’s credibility.

Holder also told the senators that “we are eager to see civil asset-forfeiture reform that includes provisions needed to make the asset-forfeiture laws more effective as law-enforcement tools,” and he urged Congress “to expand forfeiture into new areas…. From telemarketing to terrorism to counterfeiting to violations of the food and drug laws, the remedy of asset forfeiture should be applied.” A forfeiture “reform” bill that Congress finally passed in 2000 actually doubled the number of federal laws that prosecutors could use to seize private property.

The new law did nothing to curb law enforcement’s profiteering from forfeitures: The basic conflict of interest was perpetuated untouched. The law imposed a ludicrous requirement that citizens who file suit to recover their property must swear that their claim is not “frivolous.” Any citizen who lies and files a frivolous suit can face three years in prison simply for filing the suit. E.E. Edwards, the cochairman of the forfeiture task force of the National Association of Criminal Defense Lawyers, said that the perjury threat is “a thinly veiled attempt to intimidate people from making a claim.” On the other hand, there are no penalties for frivolous seizures of private property by federal agents; the punishment for such behavior will continue to be outstanding-performance evaluations.

Forfeiture policy is an eternal refutation to the chorus that tells citizens to trust the government.  The more power government has, the more citizens will be plundered.  And even the most brazen abuses have not been enough to end this particular outrage.

Tagline: Bovard is the author of a new e-book memoir, Public Policy Hooligan, and a policy advisor to FFF.