Property seizures on trial - controversy over police rights to seize alleged criminals' assets

0 Comments | Insight on the News, Feb 22, 1993 | by Richard Miniter

Summary: Seizing the assets of suspected criminals was billed as a powerful weapon in the war on drugs when Congress passed its 1984 crime bill. But it's too powerful, as critics see it. The ancient doctrine of civil forfeiture has meant billions for police across the country; the Supreme Court will soon decide whether it has also trampled the rights of the innocent.

Americans are losing their homes, cars, cash and other valuables - to the police. Civil forfeiture - an ancient legal doctrine expanded to prosecute the war on drugs - allows the police to arrest property, charge it with a crime and hold it indefinitely, though the owner may never be charged with a crime.

"Because the property itself is the defendant, the guilt or innocence of the property owner is irrelevant;' E. E. "Bo" Edwards, chairman of the Forfeiture Abuse Task Force of the National Association of Criminal Defense Lawyers, told Congress in September.

Forfeiture, which traces its roots to medieval legal theory, has turned modern law enforcement into a money-raising enterprise in many parts of the nation. Law enforcement officials have seized more than $2.6 billion worth of houses, cash, cars and other assets since 1985. Another $1.5 billion in seized assets are currently "in process," according to the Justice Department's Executive Office for Asset Forfeiture. The loot is typically divided among law enforcement agencies all the way from local sheriff's offices to the federal Drug Enforcement Administration.

The result is a policy very popular with police, their paymasters and citizens eager to hit criminals in the wallet. Police insist that forfeiture is a necessary weapon in the war on drugs. Without being able to strip illgotten gains from drug kingpins and other lawbreakers, they say, law and order would break down. Besides, say advocates, forfeiture produces a kind of poetic justice - making criminals pay for law enforcement.

But critics say that, as legal weapons go, forfeiture is more of a nuclear warhead than a smart bomb. Besides criminal defense lawyers, the opposition ranks include civil or economic libertarians, property rights activists and a growing number of judges.

There are two types of forfeiture, criminal and civil. Criminal forfeiture involves the surrender of property after the owner has been convicted of a crime. Civil forfeiture is much more controversial, allowing government officials to seize property without warning or compensation if they believe it can be linked to criminal activity. The burden of proof is on the owner if he seeks to recover his property, even if he has never been convicted of or even charged with a crime.

Civil forfeiture had been a quiet backwater of the law since the Civil War. Then, in 1984, Congress passed the Comprehensive Crime Control Act, empowering federal and local officials to seize the emblems of success from drug dealers - their cars and yachts, houses and bank accounts. But forfeiture is not limited to drug cases. Federal and local lawmakers have expanded its use to cover a large number of criminal activities. Some cities, for example, now seize the automobiles of men suspected of soliciting prostitutes. "The process has run amok," says Edwards. "Law enforcement agencies, in their zeal, have turned the war on drugs into a war on the Constitution."

The Pittsburgh Press, after a 10-month investigation by Pulitzer Prize-winning reporters Mary Pat Flaherty and Andrew Schneider, estimated in 1991 that 80 percent of people whose property is seized by the government are never charged with a crime.

And most of the property taken is not the high-priced cars, speedboats and other toys of drug lords. Only 17 percent of the assets of the more than 25,000 items seized in 1989 and 1990 are valued at more than $50,000, according to a DEA data base.

The six-part series by Flaherty and Schneider uncovered a number of anomalies in the use of forfeiture. Most disturbing was the potential they uncovered for money to sway the decisions of law enforcement. Many forfeitures, for example, begin with tips from informers who are paid with the proceeds. Most informers receive about 10 percent of any cash seized by the DEA as a result of their tips.

This money doesn't always go to the most savory characters. Anthony Tait, a Hell's Angel and confessed drug user, earned about $1 million from the FBI in the late eighties, $250,000 of which came from assets forfeited thanks to his information.

Informers are often themselves convicted felons who are trying to win reduced sentences. Juries frequently don't believe them and acquit the accused, but the police get to keep the property anyway. Steve R. Mudd, who earned $4.65 an hour for his undercover work in Kirksville, Mo., in 1989 and 1990, fingered 35 people who he said sold him drugs. Mudd, who didn't wear a hidden microphone, insisted on working alone. Taking Mudd at his word, police searched homes and made several arrests. All of the cases fell apart when Mudd recounted details in court that contradicted his own written reports and when the "drugs" Mudd said he bought turned out to be powdered Tylenol 3.