Nadine Strossen's Congressional Testimony on Civil Asset Forfeiture Reform

Statement
Of
Nadine Strossen, President
American Civil Liberties Union
On
The Civil Asset Forfeiture Reform Act
Before The
Committee on the Judiciary
Of The
United States House of Representatives
June 11, 1997


Introduction

Mr. Chairman and Members of the Judiciary Committee, on behalf of the American Civil Liberties Union, I am pleased to be here to day to support the bi-partisan sponsored Asset Forfeiture Reform Act (hereinafter "the Act"). Also, thank you for inviting me to share our comments with you regarding civil asset forfeiture laws and their need for reform.

The ACLU believes that all civil forfeiture schemes inherently violate fundamental constitutional rights, including the right not to be deprived of property without due process of law and the right to be free from punishment that is disproportionate to the offense. While we believe the practice of civil forfeiture should be abandoned, we support meaningful reform efforts which would mitigate its harshness and incorporate equitable provisions and principles of due process. The Act addresses many of our concerns and takes a significant step forward that is long overdue. This bill would reform forfeiture proceedings to provide property owners with some significant procedural protections. It would also make it more difficult for the government to confiscate the property of innocent owners - people who were not aware of, or did not consent to, any illicit activity in connection with their property. In addition, it provides indigent property owners with the opportunity to have counsel appointed to represent them during the forfeiture proceedings. These reforms are critically needed because innocent property owners, or those who have committed only minor infractions are now subject to draconian punishments and property deprivations with rather limited constitutional or procedural protections. Because of these and other important procedural protections it provides, the ACLU endorses this legislation and urges Congress to swiftly pass the Civil Asset Forfeiture Reform Act.

I would like to personally commend Chairman Hyde for his leadership and long standing commitment to reforming civil asset forfeiture in our nation. Mr. Chairman, you began this legislative journey, with the support of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, back in 1993, with the introduction of the H.R. 2417, the "Asset Forfeiture Reform Act of 1993." You also made a powerful case for civil asset forfeiture reform in your book (1) in which you documented and exposed many of the abuses inherent to the asset forfeiture system. Last year, you reintroduced your civil asset forfeiture reform legislation, however, there was insufficient time left in the 104th Congress to fully consider the bill. (2) It is now time to complete the good work you started by passing your legislation early in the 105th Congress.

The current legislation is a hallmark of your legislative leadership. You have drafted a bill that has gained wide bi-partisan support, as well as endorsements from across the political spectrum. From the ACLU to the Institute for Justice to the CATO Institute, you have forged a diverse coalition of support from organizations that traditionally make for "strange bedfellows." All of these organizations are united with one common goal - reforming the terribly unjust federal civil asset forfeiture laws.

Problems With Civil Asset Forfeiture

The roots of civil forfeiture can be traced back to medieval England where kings used the procedure to seize the property of disloyal nobles. The American model for civil forfeiture dates back to the eighteenth-century where forfeiture laws were used to combat piracy and customs violations. Under this system, courts permitted the government to seize the offending ship as a civil remedy, rather than requiring criminal prosecution of the owners. These owners were usually not American and difficult to locate for criminal prosecution. Thus, permitting the government to proceed against the vessel under a civil forfeiture action, the government could punish an owner for a crime with minimal evidence and without any of the constitutional protections afforded a criminal defendant. 

The modern era of civil asset forfeiture flows from these same archaic legal concepts. It is based on the legal fiction that inanimate objects may be found guilty and condemned. Thereby, the object or property is subject to seizure and forfeiture to the government. Pursuant to this construct, the guilt or innocence of the owner is irrelevant, because the forfeiture action is against the "object" not the "owner." In fact, no criminal arrest or conviction is even necessary to subject property to forfeiture. Government authorities must simply satisfy a requirement of probable cause that the property was used in an illicit activity or was purchased with funds from illicit activity in order to subject the property to forfeiture. As a result, civil forfeiture constitutes a dangerous, collateral weapon for law enforcement agencies where criminal convictions are more difficult to come by

The profound inequity of civil asset forfeiture system is exemplified by the distinction between criminal and civil forfeiture. Criminal forfeiture is imposed in a criminal proceeding directed against an individual for his or her alleged misconduct. While a defendant in a criminal forfeiture prosecution is entitled to all the constitutional and procedural protections associated with the criminal process, a person facing civil forfeiture, on the other hand, receives none of the constitutional safeguards associated with the doctrines of due process and criminal procedure.

The irony and unfairness created under this system is worth illustrating. A major drug trafficker prosecuted under criminal forfeiture statutes is correctly afforded all of the due process and constitutional protections governing the forfeiture of their property. Whereas, an innocent 72 year old grandmother, whose grandson, without her knowledge, allegedly makes a drug sale from her front porch is subject to losing her home and possessions without the benefit of indictment, hearing, trial, or any other constitutional or procedural protection - not even the right to counsel. (3)

Not surprisingly, civil forfeiture has been especially attractive to law enforcement authorities because success demands very little in the way of proof or connection to actual wrong. Civil asset forfeiture originally was championed by law enforcement officials as a powerful weapon to fight the "war on drugs." Indeed, it was thought of as some form of poetic justice: seizing the assets of major drug traffickers and using these assets to fund legitimate law enforcement initiatives. However, as a result of the ease with which law enforcement authorities are able to secure forfeitures, the use and abuse of forfeiture has skyrocketed. In some localities, it is being used against everything from drugs to drunk driving to prostitution. Unfortunately, in their zeal, law enforcement agencies have turned civil forfeiture into a nightmare come true for thousands of ordinary people who have minor brushes with the law or who are completely innocent of wrongdoing. Tragically, scores of innocent citizens and the Constitution have become casualties in this so-called "war."

While civil forfeiture proceedings have been held not to require the fundamental protections essential to a criminal proceeding, they are nevertheless penal. Indeed, the Supreme Court has recognized that in certain circumstances civil forfeiture may be punitive in nature and thus regulated by the Excessive Fines Clause of the Eighth Amendment.(4) The legal fiction that surrounds civil asset forfeiture provides no comfort for those individuals who find themselves exposed to the harsh penalties associated with the criminal system without any of the fundamental constitutional and procedural protections inherent to the criminal justice system.

Abuses in Civil Asset Forfeiture: The Victims

The limited constitutional protections for individuals subjected to civil forfeiture laws coupled with unbridled, permissive law enforcement authority, creates a civil forfeiture system that is ripe for abuse. Particularly appalling is the list of cases documenting the disproportionate victimization of minorities through the use of racially based criteria to unlawfully target and stop African-American and Hispanic travelers. Willie Jones, an African American landscaper, had the misfortune to experience this humiliation.(5) He had $9600 in cash seized from him at the Nashville airport simply because he fit a so called "drug courier profile" - that is, an African American paying for a round-trip airline ticket with cash. He actually planned to use the money to by landscape materials. Unfortunately, Mr. Jones' plight is not that unusual. Several investigative media reports have chronicled and exposed how civil forfeiture is particularly harsh on minorities as a result of the extensive use of racially based profiles to determine law enforcement targets. (6)

Further abuse is found in what is sometimes described as law enforcement extortion. This involves the practice of offering "out of court" cash settlements to otherwise innocent or minimally culpable individuals whose property was seized in exchange for a return of their property. Debra V. Hill's case illustrates this practice in action. She and her family were guests in a house that police raided. During the raid, the police discovered a small amount of methamphetamine in a box of clothing that did not belong to her. The police confiscated the $550 in her possession. She was so desperate for the cash that she agreed to forfeit $250 to the prosecutor in return for the remaining $300. When the charges against her were dropped, she did not receive the balance of her money.(7) And there is the case of Kevin Perry, a gravel pit laborer from Ossipee, New Hampshire. After he and his wife pleaded guilty to the misdemeanor of growing four marijuana plants, the United States sought to forfeit their mobile home, worth $22,000. Following a fifteen-month battle to avoid homelessness, the government finally agreed to return the home for $2500. In order to pay the $2500, Mr. Perry had to take out a loan to be repaid at a rate of $155.63 a month.(8)

Finally, the lucrative business of asset forfeiture has created a strong temptation for law enforcement officials to pursue assets at the expense of pursuing convictions. The extensive use of civil forfeiture by federal and state law enforcement authorities has led to the confiscation of billions of dollars in drug assets. All of the money and property seized by state and federal officials is deposited back into the budgets of the seizing agencies. What originally was seen as a means of forcing criminals to pay for their own apprehension, has become an incentive for local, state and federal officials to seize property to auction justice to the highest bidder. As a result, major drug dealers are allowed to barter their way out of lengthy prison terms by prosecutors who have become preoccupied with huge sums of money to be obtained from drug forfeiture assets. 

Conversely, low level drug users, with no assets or information to swap, are exposed to the full wrath of the harsh drug laws, specifically designed over the past decade for the worst drug offenders. Last fall, two reporters from the Boston Globe uncovered the distressing truth about this practice in action in Massachusetts. They compared the distinctly different experiences of Rachel Acevedo and Stephen Fenderson. Rachel Acevedo, a 25-year-old mother of three, is currently serving a ten year mandatory sentence, without the possibility of parole. She was prosecuted along with her former boyfriend for selling four ounces of cocaine to an undercover drug officer. The boyfriend fled before trial, leaving Ms. Acevedo the lone target for the prosecutors. Stephen Fenderson, on the other hand, had his home raided by police, where they found 23 bags of cocaine, a loaded illegal shotgun, ammunition, and other drugs hidden throughout the house. All tolled, these offenses would normally subject him to a mandatory sentence of fifteen years in prison. This did not occur. Mr. Fenderson forfeited $425,000 in drug money, and is a free man today after serving only 2½ years.(9) It seems that crime does pay if you are able to ante up to law enforcemnent. 

Reforming Federal Civil Asset Forfeiture Laws

To be sure, the abuses discussed above clearly make the case for the need to reform the civil asset forfeiture laws. The current law of civil forfeiture borders on the Medieval: it allows law enforcement authorities full discretion to confiscate any and all cash and property based upon mere suspicion of wrong doing; owners of such money and property are not entitled to appointed legal counsel; unjust procedural barriers such as unreasonable short time limits to contest a seizure and the requirement that a property owner post a bond in order to contest the seizure often times bar recovery; and the uncharged and completely innocent are presumed guilty in court because the burden of proof is on the individual whose property is being seized. The Act represents a sound first step in the effort to reform the civil asset forfeiture laws. While the Act contains several significant improvements, we believe that the following provisions are particularly essential to any meaningful forfeiture reform legislation.

Possibly the most important provision in the Act, places the burden of proof on the government to prove that property it has seized was subject to forfeiture by clear and convincing evidence. (10) Under current law, the government is simply required to meet its low standard of proof - probable cause that the property is subject to forfeiture - then the burden shifts to the property owner to prove either the "properties innocence," or that the owner did not know and did not consent to the property's illegal use. (11) The government's probable cause burden, in reality, means only slightly more than a hunch and far less than what is necessary to prove guilt in a criminal court. It is commonplace to have a seizure and forfeiture of money and property based solely on hearsay "evidence" that is deemed too unreliable to be admissible in most other judicial proceedings. These burdens, easy on the government, hard on the property owner, often result in the seizure of property owned by one against whom the government cannot support a criminal charge. (12) An owner can only overcome this presumption by proving that he had no knowledge of the illicit activity or did not consent to that activity. That is, the owner is required to prove a negative. The Act corrects this unfairness by simply restoring fundamental due process for property owners by changing these unfair evidentiary rules. 

The Act also offers a clarification of the "innocent owner" defense. This provision specifically provides for the protection of owners from civil forfeiture who neither knew of the criminal misuse of their property nor consented to the illegal activity. Although under this codification, an innocent owner would still have the burden of proving his ignorance or non-consent, the ACLU believes this provision would provide additional protection for innocent property owners and insure uniform enforcement of the forfeiture laws. (13)

The appointment of legal counsel for indigent property owners is provided for under the Act. Indigent property owners are given the opportunity to obtain court-appointed counsel to assist them throughout the forfeiture process. Since the civil forfeiture system can be just as punitive as the criminal system, it is essential that those citizens exposed to either system receive legal counsel to protect their rights and liberties. The ACLU believes that this provision is absolutely essential in order to insure that individuals can avail themselves of the other reforms contained in the Act that are designed to protect their property rights and liberties. Indeed, without the right to counsel, the other reforms in the Act may be rendered meaningless for many property owners. In many respects, this provision alone breathes life into the Act.

The ACLU also strongly supports the provisions in Act that improve the unfair procedural obstacles that make it difficult to contest forfeitures. First of all, the Act extends the deadline to contest a government forfeiture from as little as ten days to thirty days. Although we would prefer a longer period of time,(14) this provision improves the extremely short time period currently in effect; thus, reducing the chances that a claimant will miss the deadline for filing a claim to recover his property. In addition, the Act also eliminates the need for an owner to pay the cost of a bond in order to file a claim. The government has strictly enforced these requirements, and has permanently deprived owners of their property for any slight non-compliance with them. It also would allow for the release of confiscated property if the seizure causes a substantial hardship on the owner and a right to sue if confiscated property is damaged through governmental negligence.

The ACLU Supports Additional Reforms

While the ACLU supports the Act and urge its adoption, we believe additional provisions should be added to the bill that would further curtail abuses and protect the civil liberties of citizens. Any future forfeiture reform initiatives should include the following measures:

  • A person should be convicted criminally before the government may seize the property involved.  
  • The government should be required to conduct an adversarial preliminary hearing prior to seizure.  
  • The standard of proof to support a property forfeiture should be beyond a reasonable doubt.  
  • The property seized should be limited to the items used to facilitate the criminal enterprise.  
  • Civil asset forfeiture proceeds should be turned over to the federal government's general fund to allow for the equitable distribution of the proceeds among federal governmental agencies. 

Conclusion

Civil forfeiture as a whole stands outside the doctrines of due process and criminal procedure. Despite the widespread use and well documented misuse of civil forfeiture, it is an arcane legal doctrine which exists merely because of its historical foundation and its fiscal advantage to law enforcement agencies. While promoted as a civil cause of action, its ramifications are more akin to the harsh punitive aspects associated with the criminal system -- without any of the important fundamental constitutional due process protections for civil rights and liberties. This leaves many citizens unprotected from law enforcement's overzealous and unencumbered use of these laws. The time is long overdue to reform the unfair civil asset forfeiture system.

As stated earlier, while the ACLU believes that all civil forfeiture schemes should be abandoned, we do endorse the bi-partisan supported Civil Asset Forfeiture Reform Act. It mitigates the harshness of civil asset forfeiture by establishing important equitable provisions and principles of due process for individual property owners who are faced with a prospective forfeiture. Accordingly, we urge Congress to promptly pass the Act. We also hope that Congress will eventually pass further measures that will completely overhaul civil asset forfeiture programs. Only such a complete overhaul will fully restore fundamental rights for all Americans. 

We thank you Chairman Hyde for the opportunity to present our comments to the Judiciary Committee today. 

(1) See Representative Henry J. Hyde, Forfeiting Your Property Rights: Is Your Property Safe From Seizure? (1995).

(2) H.R. 1916 (104th Congress, Second Session).

(3) Illustration is based upon a real case documented in the statement of James Hoyle, submitted to the House Committee on Government Operations, Legislation and National Security Subcommittee, Re: The Federal Asset Forfeiture Program, September 30, 1992.

(4) See, e.g., Austin v. United States, 113 S. Ct. 2801 (1993); Alexander v. United States, 113 S. Ct. 2766 (1993).

(5) Andrew Schneider & Mary P. Flaherty, Drug Agents Far More Likely to Stop Minorities, Pitt. Press, Aug 12,, 1991, at A1.

(6) See, e.g., Steve Berry & Jeff Brazil, Tainted Cash or Easy Money?, ORLANDO SENTINEL, June 14, 1992, at A-1; supra note 3; see also 60 Minutes: You're Under Arrest (CBS television broadcast, Apr. 5, 1992).

(7) Oregonian, June 20, 1990, p.D4.

(8) USA Today, May 18, 1992, pp. 1A, 7A.

(9) Dick Lehr & Bruce Butterfield, Small-Timers Get Hard Time, THE BOSTON GLOBE, Metro p.1 (September 24, 1995).

(10) This standard has been adopted in New York and Florida. See, N.Y. Civ. Prac. L & R Section 1311(3)(McKinney Supp. 1994); Department of Law Enforcement v. Real Property, 588 So.2d 957, 967 (Fl. 1991).

(11) This is commonly referred to the "innocent owner" defense which requires the owner of seized property to carry the burden of proving that she did not know and did not consent to the property's illegal use. 21 U.S.C. Sec. 881(a).

(12) Eighty percent of the people who lost property to the Federal government were never charged with a crime. "Government Seizure Victimize Innocent," Pittsburgh Press, August 11, 1991.

(13) The Supreme Court's recent confounding decision in Bennis v. Michigan, 116 S. Ct. 994 (1996) emphasized the importance of the innocent owner defense. Despite acknowledging that Ms. Bennis lacked any knowledge that her husband had used their jointly owned automobile to engage in criminal sexual indiscretions with a prostitute, the Court permitted the forfeiture of the automobile. 

(14) Chairman Hyde's previous Asset Forfeiture Reform Act, H.R. 2417, provided for a sixty day time period for filing a claim. This would be a preferable time period.

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