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The Dangerous Expansion of Forfeiture Laws

By James Bovard

Asset forfeiture laws have been spreading like a computer virus through the nation's statute 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 modern America.

Federal agents can confiscate private property with no court order and no proof of legal 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 daily 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 $357,144 seized 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 from outbound 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 enact sweeping 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 Department employees.

Mr. Hyde pushed the new bill through the Judiciary Committee on June 21st 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, characterizes most 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 persons 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.

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