HEADLINE: Render Not Unto Seizure
The GOP must choose between law and enforcement.
BYLINE: by James Bovard.;
James Bovard is the author of Freedom in Chains: The Rise of the State and the
Demise of the Citizen (St. Martin's Press).
The Justice Department last year confiscated 42,454 cars, boats, houses, stacks
of cash, and other items of private property--booty valued at nearly $605
million. Federal agents can seize a person's property by invoking more than two
hundred different federal statutes involving everything from wildlife to
The American Spectator, September, 1999 September, 1999
carrying cash out of the country to playing poker for cash with friends and
relatives. The vast majority of people whose property is seized is never
formally charged with a crime. In criminal cases, the government must prove a
person guilty beyond a reasonable doubt. In civil asset forfeiture, the only
thing federal agents need is a hearsay accusation, mere gossip, or rumor. Often
forfeitures are based on the word of confidential informants (frequently
ex-convicts), who receive up to 25 percent of the value of any property the
government seizes based on their accusations.
Now Congress and the Clinton administration are battling over the scope of
government's power to confiscate private property. The House of Representatives
has rebuked the administration and its allies on the issue by a surprising
margin, yet the Senate seems far more seizure-friendly. And the White House is
doing all it can to expand federal power in this area. This battle also
highlights a major fault line within the Republican Party, between those who
cater to law enforcement and those who believe government power must be limited.
Rep. Henry Hyde (R-Ill.) has been pushing to reform forfeiture since 1993.
This year, he finally got his bill through the House--aided by a diverse band of
co-sponsors including Rep. Bob Barr (R-Ga.), Rep. Barney Frank (D-Mass.), and
Rep. John Conyers (D-Mich.), and backed by organizations ranging from the
American Civil Liberties Union to the National Rifle Association. Hyde's bill
would shift the burden of proof to the government in forfeiture cases, abolish
the requirement that people post cash bonds before suing to regain their
property, and institute other procedural changes to make the system more
Hyde's bill evoked hysteria among American law enforcement. Rep. Asa
Hutchinson (R-Ark.) introduced a substitute "reform" bill that would have
actually greatly increased the government's power to confiscate property. Most
of Hutchinson's substitute bill was written by Justice Department lawyers.
During the floor debate on Hyde's bill on June 24, Hutchinson complained:
How does disarming law enforcement fit into the war on drugs?" Thus, decreasing
a DEA agent's power to seize your car is the equivalent of taking away his
Some of the opponents of Hyde's bill were indignant that the House would even
stoop to consider such a bill and mention some well-known forfeiture outrages.
Rep. Anthony Weiner (D-N.Y.) raised the caliber of the debate with a gem of
congressional logic: "The abuses that exist, and they do, they represent the
straw man in this debate because indeed we all want to do away with the abuses."
Thus, because all members of Congress must be presumed to wish that abuses did
not occur, it is unfair and irrational to actually consider seizure abuses
when seeking to reform the law.
Rep. Ed Bryant (R-Tenn.) explained why money was so often seized from those
with no drugs on them: "The way the system works in this is when there are
couriers...they either have the money or they have the drugs, but they do not
have them both.... So we either find drugs on the person or money on the person,
depending which way they are going. Thus, the fact that someone is caught with
lots of money but no drugs miraculously proves that they are a drug courier."
Hyde's bill would allow judges the option of appointing counsel for indigent
citizens who seek to challenge forfeiture actions. (The cost of hiring a lawyer
to fight a seizure is widely estimated to be at least $5,000-- often more than
the value of the goods seized.) Opponents complained that this would mean
forcing taxpayers to bankroll attorneys for every drug cartel chieftain in the
hemisphere. Rep. Jim Ramstad (R-Minn.) fretted that " frivolous claims would be
encouraged by this legislation."
Ramstad said he had been told by lawmen that, if Hyde's bill passed, "the
so-called buy money to enforce drug laws would essentially dry up, because much
if not most of the buy money comes from forfeiture of these assets." Yet sting
operations that require this "buy money" have never crippled a single major drug
cartel. They merely provide photo opportunities for police and prosecutors
nailing petty offenders.
Most who defended the status quo did so, at least implicitly, on the grounds
that the war on drugs is being won largely thanks to forfeiture. Yet Rep. Bill
McCullom (R-Fla.) seemed to oppose reform based solely on statistics that show
rising drug use among children. Rep. John Sweeney (R-N.Y. ) warned that limiting
forfeiture power would mean "removing the teeth from the most valuable tool in
what seems to be a losing war against drugs." Sweeney pleaded with his
colleagues: "Can we not strike a balance between free enterprise and criminal
enterprise?" Presumably, wrongful seizures by government agents were not the
"criminal enterprise" Sweeney had in mind.
Hutchinson's substitute bill, to expand government confiscatory power, was
defeated by a vote of 268 to 155. Afterwards, Hyde's bill passed by 375 to 48.
While reform advocates pointed to the margin as indicative of irresistible
support, the bill now faces a doubtful future in the Senate.
On July 21, the Senate subcommittee on criminal justice oversight held a hearing
dominated by friends of forfeiture. Law enforcement lobbies pulled out all the
stops to fear-monger on this issue. Johnny Mack Brown, a Greenville County,
South Carolina sheriff who testified on behalf of the National Sheriffs
Association, denounced the House bill as "reprehensible" and "an entitlement
program for lawyers." Gilbert Gallegos, president of the Fraternal Order of
Police, pleaded, "Do we continue to stand up and fight those who peddle drugs to
our kids and our grandkids or will we decide to surrender an important
crime-fighting tool to critics of the civil forfeiture act?" Sen. Strom Thurmond
(R-S.C.) cautioned that the House bill "may undermine the use of forfeiture law
in the war against drugs, child pornography, money laundering, telemarketing
fraud, terrorism and a host of other crimes."
Richard Fiano, DEA chief of operations, assured the senators that "DEA's
asset forfeiture actions all take place within a legal framework with built- in
protections for the innocent." Last December, the agency confiscated $19, 000
from a professional basketball player who was stopped and searched while driving
in Ohio; a drug-sniffing dog alerted a state highway patrol officer to the money
in the car, which bore traces of cocaine. (The DEA was brought in because state
law did not allow the highway patrol to directly confiscate the money;
forfeiture routinely involves collusion between multiple law enforcement
agencies to evade restrictions on their power.) Yet studies have shown that up
to 70 percent of all currency bears some type of drug residue.
Customs Service Assistant Commissioner Bonni Tischler assured the senators
that "we're proud of our successes on this front, and were proud of our
responsible, professional, and efficient use of seizure methods." But it was a
wrongful Customs seizure of $357,000 from a Syrian-American at the Los Angeles
airport that spurred a June 1998 Supreme Court decision that was the sharpest
rebuke yet to federal forfeiture efforts. The Customs Service responded to the
Supreme Court decision by announcing new, higher targets for confiscating cash
from outbound travelers.
The Justice Department is now pitching bones to the reformers. One of its
proposals is for the government to "pay interest on any money seized and later
returned, or pay damages on any property seized and returned." As recently as
1995, a federal court lambasted Justice for refusing to pay interest on returned
money, even after a federal judge ordered it to put the money (held for five
years) into an interest-bearing account. Justice now portrays what most would
consider minimal decency--compensating those whose property it wrongfully
seizes--as if it were a significant reform.
The Clinton administration is striving to recast forfeiture as an apple pie
issue. Treasury Undersecretary James Johnson told senators that the Treasury
forfeiture fund had paid for the explosive-detection canine teams that swept
Littleton High School in Colorado, and for a program in 27 cities to target
illegal sources of guns used by young people. Clinton administration officials
implied that, unless the government continues seizing private property on the
slightest pretext, public safety will be jeopardized. Since 1980, the
appropriations for the Justice Department have increased four-fold and Treasury
appropriations have more than doubled, yet apparently this is not enough.
The short-term fate of forfeiture reform could be in the hands of Sen. Orrin
Hatch (R-Utah), chairman of the Judiciary Committee and a senator who has often
served the FBI's interests. Hatch may be trying to figure out how the bill might
affect his quixotic presidential campaign. In the longer run, the battle over
forfeiture will draw a line--between politicians who grant any claim made by law
enforcement and those who remember that they were not elected merely to be
shills for government employees devoted to plundering the citizenry.