When: 10:00 a.m. Wednesday, June 11, 1997
Where: House Judiciary Committee, RHOB 2141
Washington, D.C., June 10, 1997 -- "The government's use of over broad 'civil' forfeiture
statutes has run amok," depriving innocent citizens of their property without due process of law,
the National Association of Criminal Defense Lawyers will tell the House Judiciary Committee
Wednesday.
Joining Americans victimized by unfair and repugnant forfeiture laws which stand justice on its
head, NACDL Asset Forfeiture Abuse Task Force co-chairs E.E. "Bo" Edwards (Nashville,
Tenn.) and David B. Smith (Alexandria, Va.), as well as President-Elect Gerald Lefcourt (New
York, NY), will speak in support of H.R. 1835, a bi-partisan Civil Asset Forfeiture Reform Act. The
measure is co-sponsored by Judiciary Chairman Henry J. Hyde (R-IL), Ranking Minority
Member John Conyers (D-MI), and committee members Bob Barr (R-GA) and Barney Frank (D-MA). Testimony will cite numerous examples of American citizens permanently deprived of
their property without a day in court, even when no criminal charges were ever brought.
"The war on drugs should not be allowed to become a war on citizens or on the Constitution,"
NACDL President-Elect Lefcourt said from his office in New York.
In "civil" forfeitures, the government targets the property as the "guilty party," rather than the
property's owner. The burden then falls upon the owner, as claimant, to prove the property is
"not guilty." Complex administrative and legal proceedings often prove too difficult and
expensive for many citizens whose property was illegally seized, resulting in their losing their
property by default. Law enforcement agents typically seize cash at airports, train and bus
stations and on the highways from travelers, often capriciously and without investigation or
criminal charges, before allowing them go on their way, knowing that in most cases a citizen will
not have the time, money and other resources to contest the forfeiture.
NACDL has identified numerous cases in which current forfeiture laws have been abused or
misused, depriving innocent Americans of their property. For example:
Landscaper Willie Jones had his life savings, $9,000, seized from him by drug task force
agents at Nashville's airport as he was about to board a flight to Houston. He was going to use
the money to buy nursery stock in Houston. He challenged the seizure in court. When the case
finally came to trial many months later, the government could produce no evidence that Jones
had ever been involved with drugs. The court ordered the DEA to return his money. Jones was
represented pro bono by Bo Edwards. But in the vast majority of cases, citizens cannot afford a
lawyer to take on their cause.
61 year old Donald Scott, heir to the Scott Paper fortune, was slain in his Ventura, County,
CA, home by police in a joint local-federal drug task force executing a search warrant based on
the word of an unreliable drug informant. No marijuana or other drugs were found in his home
or anywhere else on the 200-acre ranch. An investigation by County District Attorney Michael
Bradbury concluded that the primary purpose of the raid was in fact simply to seize and forfeit
the ranch, for the direct pecuniary gain of the law enforcement agencies executing the raid!
Volusia County, FL, deputy sheriffs ride Interstate 95 and pull over "suspect" vehicles. The
county has seized well over $8 million in the past few years from unlucky motorists. But out of
262 recorded seizure cases, only 63 ever resulted in criminal charges. Of the remaining 199
motorists whose money was seized, 90 percent were non-white. Coincidence? Forfeiture cases
rarely go to court in Volusia County: in the absence of any evidence of criminal complicity, and
with the sheriff's knowledge that the money would have to be returned if challenged in court, the
sheriff's office offers to "settle" the cases out-of-court and agrees to return a portion of the seized
property. Motorists who want, or need, at least some of their money back right away and cannot
afford a local lawyer must sign written settlement agreements in which they promise not to sue
the county in exchange for receiving a portion of their cash back.
In many cases, federal agents seize cash, vehicles, real estate or other property on the
inadmissible "hearsay" statement of an informant, who is then paid as much as 25 percent of the
proceeds for his "tip." Such contingency arrangements invite abuse by shady characters who
stand to profit from "snitching and lying," the NACDL attorneys observed. After paying the
informant, the rest of the proceeds go to the law enforcement agency that made the seizure, rather
than into the general treasury, thereby creating a serious conflict of interest. For example, agents
may receive information from an informant that a shipment of cocaine worth $500,000 will
arrive at a stash house for distribution to mid-level dealers. If the agents raid the stash house on
Monday, they can arrest the sellers, the mid-level dealers and seize the cocaine before it hits the
streets. But if they wait until Friday, when the mid-level distributors return with the cash from
their sales, the agents can seize $500,000. Sometimes cash is just too tempting to pass up.
NACDL supports the bi-partisan Civil Asset Forfeiture Reform Act. It would make a number of
crucial improvements to help protect innocent property owners while giving no relief to
criminals:
Shift the burden of proof to the government -- The burden of proof is now on the owner, to
prove the "innocence" of his property. This turns the presumption of innocence on its head. The
bill would force the government to prove, by clear and convincing evidence, that the property
was part of a criminal scheme.
Eliminate the "cost bond" -- Presently, a claimant whose property is seized must post 10
percent of the value of the property with the seizing agency to cover the agency's "costs" if the
claimant asserts his legal rights to his property. The claimant has 30 days to post the bond; if he
cannot, the property is "administratively" forfeited without the case ever being heard by a court.
The cost bond requirement would be abolished by the bill.
Court-appointed counsel for indigents -- The reform bill would allow persons without the
means to hire a lawyer to ask the court to appoint counsel for them. "A poor person has as much
right to monies or belongings wrongfully or mistakenly taken from him by the government as a
rich person does when the government wrongfully seizes his stocks and bonds," says NACDL
President-Elect Gerald Lefcourt. If this bi-partisan measure is passed, the money to pay the
court-appointed lawyer would quite economically come from the Justice Department's Asset
Forfeiture Fund, containing seized assets, rather than being an additional drain on the taxpayers'
pockets.
Provide for a meaningful innocent owner defense -- Currently, innocent persons frequently
lose valuable property because someone else is claimed to have used it for an unlawful purpose,
even without the owner's knowledge or consent. The Civil Asset Forfeiture Reform Act would
ensure that truly innocent owners are protected.
Copies of NACDL Testimony by contacting Jack King, jking@nacdl.com; they are also available on NACDL's web page under Legislative Testimony.
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National Association of Criminal Defense Lawyers (NACDL)