Asset forfeiture laws have been spreading like a computer virus through the
books. Until a decade or two ago, such laws targeted primarily customs violators, but today more
than 100 federal laws authorize federal agents to confiscate private property allegedly involved in
violations of statutes on wildlife, gambling, narcotics, immigration, money laundering, etc. The
vast expansion of government's forfeiture power epitomizes the demise of property rights in
Federal agents can confiscate private property with no court order and no proof
violations. Law-enforcement officials love forfeiture laws because a hefty percentage of the
takings often go directly to their coffers. The Justice Department alone bequeathed $163 million
in confiscated assets to state and local law enforcement last year.
Forfeiture policies achieved national scandal status beginning in the early
1990s. A federal appeals
court complained in 1992: "We continue to be enormously troubled by the government's
increasing and virtually unchecked use of the civil forfeiture statutes and the disregard for due
process that is buried in those statutes." In 1993 another federal appeals court questioned whether
"we are seeing fair and effective law enforcement or an insatiable appetite for a source of
increased agency revenue." A September 1992 Justice Department newsletter noted: "Like
children in a candy shop, the law enforcement community chose all manner and method of seizing
and forfeiting property, gorging ourselves in an effort which soon came to resemble one designed
to raise revenues."
In many forfeiture cases, innocence is irrelevant. The Supreme Court further
tilted the legal
playing field against ordinary people last year in a decision in a case involving the innocent co-
owner of confiscated property. John Bennis stopped on his way home from work to dally with a
prostitute in his Plymouth; Detroit police descended on the scene and seized the car, whose co-
owner was Mr. Bennis's wife, Tina. The court ruled 5-4 that the seizure did not violate the wife's
constitutional rights even though she clearly was not complicit in her husband's illicit behavior.
Chief Justice William Rehnquist wrote: "The government may not be required
to compensate an
owner for property which it has already lawfully acquired under the exercise of governmental
authority." By asserting that the government had already "lawfully acquired" the Bennises' car
simply because it had a law authorizing seizure of the car, Justice Rehnquist basically granted
government unlimited power to steal: If it wants to "lawfully acquire" private property without
compensation, all it needs to do is write more confiscatory laws.
This term the Supreme Court is considering another forfeiture case, involving
from a Syrian immigrant, Hosep Bajakajian, who was searched at the Los Angeles airport prior to
heading back to Syria. The money consisted of profits from his two gas stations as well as loan
repayments for relatives in Syria.
Both a federal district court and an appeals court concluded that the money
had been honestly
acquired and ordered most of it returned to Mr. Bajakajian. The Clinton administration insists that
the fact that the money is untainted is "not relevant" and that the government has a right to
confiscate the money solely because the immigrant failed to fill out a required form disclosing that
he was taking more than $10,000 in cash out of the country.
Mr. Bajakajian's case is not unusual. The Customs Service confiscated $56 million
travelers in 1996. Immigrants are among the people most susceptible to such penalties, since,
often coming from nations with corrupt customs services, they can be leery of making any
declaration of cash on hand. According to the administration's view, because someone does not
trust the government, the government somehow thereby acquires the right to rob the person.
Rep. Henry Hyde (R., Ill.), chairman of the House Judiciary Committee, took
the lead on
forfeiture reform several years ago. He offered a bill to moderate some of the worst abuses,
declaring: "Some of our civil asset seizure laws are being used in terribly unjust ways and
depriving innocent citizens of their property with nothing that can be called due process." His bill
had the support of Democrats such as Barney Frank who rarely agree with Mr. Hyde.
The Justice Department strongly objected to the bill and lobbied Mr. Hyde to
expansions of prosecutors' forfeiture power. The day before marking up the bill last June, Mr.
Hyde sidetracked his 15-page reform bill and pledged himself to a new 64-page bill -- with almost
all the new material written by Justice Department lawyers. This is like letting burglars write the
laws on breaking-and-entering, since many of the worst forfeiture abuses are committed by Justice
Mr. Hyde pushed the new bill through the Judiciary Committee on June 21 by
a 26-1 vote. The
lone dissenter, Rep. Bob Barr (R., Ga.), a co-sponsor of Mr. Hyde's original bill, says the new bill
"seems to be precisely what the Department of Justice wanted." He adds, "The problem is that it
has a good title [the Civil Asset Forfeiture Reform Act] and with the reputation of Chairman
Hyde behind it, that carries a lot of weight."
Stefan Cassella, the Justice Department's chief negotiator on asset forfeiture,
of the new provisions as "noncontroversial good government additions." However, the new bill
greatly expands prosecutors' power to seize people's assets before a trial (thereby potentially
crippling a person's ability to hire defense counsel), makes it much more difficult for citizens to
get summary judgments against wrongful seizures, and greatly increases the number of crimes for
which government can seize a person's or a corporation's assets. The National Rifle Association
warned its members: "Virtually any business that has any substantive inventory and that is
extensively regulated by the government is in danger of having its good seized -- even for non-
criminal regulatory infractions."
Asset forfeiture reform is an acid test of whether Congress and the Supreme
Court truly care
enough to protect the American people from the federal government. Property rights are too
important to cast overboard with each new passing political frenzy. The U.S. can't afford to give
law enforcement agents a blank check to violate the Fifth Amendment.
Mr. Bovard, author of "Lost Rights: The Destruction of American Liberty"
(St. Martin's), has
written often about asset forfeiture.