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

Some citizens are fighting to change forfeiture laws. A New Jersey-based group called Forfeiture Endangers American Rights says it plans to pressure lawmakers for reform regardless of the tack taken by the court. A number of groups have suggested reforms, including an exemption on seizures of personal property and tightening of an existing ban on the seizure of conveyances - cars, trucks, etc - after 60 days.

Defense lawyers would like to see forfeiture outlawed until after prosecutors have obtained a criminal conviction. This would end arbitrary seizures of cash, curtail searches that are not likely to turn up evidence of a crime and require prosecutors to meet a high standard of proof prior to the forfeiture. (It would also give criminal defendants access to their assets to pay for defense lawyers.)

This proposal is also supported by some federal judges. "We continue to be enormously troubled by the government's increasing and unchecked use of the civil forfeiture statutes and the disregard for due process," wrote Judge George C. Pratt of the 2nd U.S. Circuit Court of Appeals in a 1991 opinion. Pratt went on to urge federal district courts to stay asset seizures until after the owner is convicted.

One common law provision often overlooked in forfeiture cases is proportionality: Does the punishment fit the offense? Congress recently passed a law mandating that penalties in some criminal forfeiture cases be proportionate to the offense committed. If the court doesn't rein in forfeitures like the one in Austin vs. United States, there may be sentiment to legislate proportionality in civil forfeiture.

Even as the courts are growing skeptical of the broad use of civil forfeiture, police are growing accustomed to the easy infusion of extra cash it has meant for them. In fact, many state police forces are urging their legislators to adopt forfeiture provisions similar to the ones on the federal level. State and local police want to be able to use state courts - and not have to share the take with federal officials.

The fallback position of reformers is to argue that revenue from forfeiture should not go directly to the police, but rather into state or federal treasuries. As the Institute for Justice's Bullock puts it, at least then "police won't ignore pesky concerns like the Constitution in their temptation to make a profit."