Thursday, October 20, 2011

Wendy McElroy: The American nightmare that is civil asset forfeiture

  Being innocent does not matter. Not being arrested or convicted of a crime is no protection. With amazing ease, the government can take everything you own. And to recover it, you must prove your innocence through an expensive and difficult court proceeding in which a severely lowered standard of evidence favors the government. This is civil asset forfeiture.

  Russell and Patricia Caswell of Tewksbury, Massachusetts, know the process well. For the last two years they have battled to keep the motel that Russell’s father built in 1955 and at which Russell has worked since childhood. The couple assumed ownership of Motel Caswell in the 1980s, and viewed the asset, worth approximately $1 million, as their retirement plan.

  In the past 20 years, the Caswells have rented out approximately 125,000 rooms. Of the renters, about .05 percent have been arrested for crimes. As “good” citizens, the Caswells have meticulously reported any suspicious activity on the part of renters to the police, including possible drug use.

  Nevertheless, the U.S. Department of Justice is in the process of confiscating the motel without any compensation, through civil forfeiture, because it was used in the commission of a crime. The local police with whom the Caswells actively cooperated for years are the ones who reported them to the federal agency. Why? Because, under a policy known as “equitable sharing,” the Tewksbury police department stands to gain as much as 80 percent of the value of the seized property.

  Civil forfeiture in America is both a simple and complex tale. The simple part is that government agencies are often seizing assets for no reason other than the fact that they can. The complexity is how civil forfeiture operates.

Civil forfeiture: policing for profit

  Civil forfeiture is a broad and broadly interpreted set of laws that gives government — on the federal or state levels — the authority to take the property of those who are suspected of involvement in a crime.

  Criminal forfeiture requires that an accused person be tried and convicted before assets can be seized. By contrast, civil forfeiture does not even require a person to be charged with an offense before confiscation. If drugs are sold out of a rented home, then the oblivious and innocent owner can lose his property. If a husband uses his wife’s car for sex acts with a prostitute, then the car is “fair game” for police to grab. The percentage of the profit reaped by the police department when the house is sold or the car is auctioned depends on the particular state law or on whether the forfeiture is federal.

  What is the legal basis of civil forfeiture? It is based on a bizarre anachronism called “deodand,” which comes from the Latin deo dandum — to be given to God. Wikipedia defines the term as “a thing forfeited or given to God, specifically, in law, an object or instrument which becomes forfeit because it has caused a person’s death.” The “thing” is blamed and punished for the crime. In Medieval England, the legal doctrine led to the spectacle of animals being put on trial for causing death or harm. The practice persisted because of the economic incentives built into its application. When an animal or object was found “guilty,” the owner was expected to pay a fine equal to its value to the Crown; often, the “guilty” item was forfeited to the Crown.

  Thus, in civil forfeiture the government actually sues a thing as though it had committed a crime. For example, the lawsuit against the Caswells is officially “United States v. 434 Main Street, Tewksbury, Massachusetts.”

  In America, the colonies generally rejected the worst aspects of forfeiture laws that they had inherited from English common law. According to a paper on forfeiture by Cynthia Eva Hujar Orr, Esq., however, the U.S. government continued to use

          forfeiture to obtain ownership of the vessels that were engaged in piracy, slave trading, and smuggling.... The underlying justification for forfeiture was articulated by Justice Story when he said, “[t]he vessel which commits the transgression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner.” (PDF)

  It was not until the war on drugs in the 1970s, however, that civil-asset forfeiture became a widespread practice in America. Today, virtually every state enforces some version of the law. The Institute for Justice (IJ), which has taken on the Caswell case explains in a report, “law enforcement receives 100 percent of forfeiture proceeds in 26 states, while another 16 allow police and prosecutors to keep at least 50 percent. Only eight states bar the retention of forfeiture monies by law enforcement.”

  At the same time, state laws establish a lower standard of proof to validate a forfeiture. Although a criminal proceeding requires “proof beyond a reasonable doubt, the IJ explains,

          Only three states demand that the government show “beyond a reasonable doubt” that the property was part of a criminal act. Most states, 27, use a lower “preponderance of the evidence” standard — basically, the government must show it is more likely than not that the property was related to criminal conduct. This is also the standard in federal law.

  The incentives for the police are so skewed toward favoring forfeiture that some states have passed laws to prevent the police from “profiteering.” Massachusetts, in which the Caswells dwell, is one such state. And, yet, their property is in peril. Why?

Equitable sharing

  It is far from clear that the confiscation of Motel Caswell is actually legal under Massachusetts law. The state law allows the seizure of property “used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances.”

  And even if the seizure is in fact legal under Massachusetts law, then the police department would recover no more than 50 percent of whatever proceeds resulted.

  Thus, the Tewksbury police availed themselves of an end run around state law; they used the federal practice called equitable sharing. The federal government requires merely that the property facilitated a crime for seizure to be possible.

  Equitable sharing is a federal policy through which a state or local police force can report a case to the Department of Justice and, so, share in any federal forfeiture that results. The Comprehensive Crime Control Act of 1984 provides for such joint efforts whenever the crime “is in violation of federal law;” many drug crimes qualify.

  The feds can also “adopt” targeted property from state or local law enforcement. Such adoptive forfeitures result in the local authority eventually receiving 80 percent of the value of the confiscated assets for its own budget and that of the prosecutor’s office, even if state law provides otherwise.

  The IJ reports,

          This direct financial incentive was put into federal law in 1985. Before then, federal forfeiture proceeds went to the general revenue fund of the United States, and Congress then decided how such revenue would be appropriated. Before 1985, forfeiture revenue was modest. After the profit incentive was put into the law, forfeiture revenue exploded — and it has been growing ever since.

  In 1986, a year after the federal asset-forfeiture fund was created, largely to provide payouts to law enforcement agencies, it processed approximately $93.7 million. Today, it holds over $1.6 billion. Forfeiture is clearly a growth industry and an increasing source of funding for cash-starved agencies.


  On his Fox News television show, Judge Andrew Napolitano asked Russell Caswell, “What’s the worst thing that happened in that motel ... that has the police trying to steal it from you?”

  Caswell answered, “I paid the mortgage off.” By this, he meant that he acquired a real asset that the government coveted and could seize.

  And the authorities will seize it simply because they can. IJ President Chip Mellor explains,

          Civil forfeiture creates inevitable abuses. The Institute for Justice has documented time and again that it invites a lack of accountability, a lack of due process and a lack of constitutionally enshrined restraints on government authority. Civil forfeiture needs to end. If the government wants to take someone’s property, it should first be required to convict someone of a crime. Short of that, you will end up with what we have today in Tewksbury and elsewhere.

  Not only does civil forfeiture create abuses, as Mellor points out, it itself is an abuse — an abuse of the very concept of justice. If civil forfeiture is carried to its logical conclusion, every single motel and hotel in America could be confiscated by one government or another.

  So why the Caswells and not the local Holiday Inn? In the answer lies another moral of their story. On the Judge Napolitano show, Russell Caswell exclaimed that he and his wife “always worked with the police as much as we can.” Elsewhere he protested,

          It is un-American that I am being treated like a criminal when my family has always worked with the police to quickly report and resolve any crime that has occurred on our property. Rather than work with us, the federal government and our local police department have blindsided us and are working to take everything we’ve worked so hard to earn.

  The moral? Be very careful about reporting a crime to the police. You never know when you are turning yourself in. Or, rather, you may be turning in your property to be punished for its criminal acts.

  About the author: Wendy McElroy is the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998). She actively manages two websites: and For additional articles on current events by Ms. McElroy, please visit the commentary section of FFF website.

  This article was published by the Future of Freedom Foundation.

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