March/April 1995

Henry Hyde Criticizes Forfeiture Abuse, Urges Reform

"Much of what you may have learned in school or college about your rights and liberties no longer applies. Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use — all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed." With those words, Rep. Henry J. Hyde (R-Ill.), the new chairman of the House Judiciary Committee, opens Forfeiting Our Property Rights: Is Your Property Safe from Seizure? published by the Institute.

Hyde's book documents the increasing use of asset forfeiture ostensibly as a crime-fighting measure. "Federal and state officials now have the power to seize your business, home, bank account, records, and personal property, all without indictment, hearing or trial," he writes. "Everything you have can be taken away at the whim of one or two federal or state officials operating in secret... . We are all potential victims."

Between 1985 and 1993, the U.S. Department of Justice alone seized assets worth $3.2 billion. State and local governments also seize property in this way. The doctrine underlying forfeiture holds that property implicated in crime can be seized even if its owner is never charged or tried. In 80 percent of such cases, the owner is not charged. The standard of proof to be met by the authorities is the minimal "probable cause" standard. If the owner wishes to regain possession, he has the onus of proving in court that the property is "innocent"; his standard of proof is higher: a preponderance of the evidence. In some cases, property has been seized for acts someone other than the owner performed.

Among the horror stories recounted in the book, Hyde tells of Willie Jones, an African American landscaper. Simply because he paid for an airline ticket with cash in Nashville, Tennessee, the police searched Jones's luggage for drugs. They found none. When a police dog sniffed traces of drugs on the $9,600 he was carrying (a common condition for U.S. currency), the police confiscated the money. Jones could not afford to post the bond required to challenge the seizure. Instead, he sued for racial discrimination. More than two years later, the money was returned. Many other victims of forfeiture are not so fortunate.

Hyde argues that forfeiture not only tramples civil rights and falls especially hard on minority Americans, it also gives law enforcement agencies access to huge amounts of cash and other valuables outside the normal appropriations process. He quotes former New York City police commissioner Patrick Murphy, who said that "the large monetary value of forfeitures ... has created a great temptation for state and local police departments to target assets rather than criminal activity."

Hyde notes that the "full flowering" of civil asset forfeiture has occurred under the auspices of the war on drugs. While he supports the anti-drug effort, he writes that the drug war has been "perverted too often into a series of frontal attacks on basic American constitutional guarantees."

To end the despotism of civil forfeiture, Hyde recommends several reforms. His Civil Asset Forfeiture Reform Act first would shift the burden of proof to the government, forcing it to prove by clear and convincing evidence — not probable cause — that the alleged illegal act actually occurred and "that there is a sufficient nexus between the property and the unlawful act." Second, the Hyde Act would provide an attorney for victims of forfeiture who cannot afford one, financed from the Department of Justice Assets Forfeiture Fund. Third, the act would protect innocent property owners by permitting as valid defenses in forfeiture cases the lack of consent to illegal activity on their premises and evidence of reasonable efforts to prevent that activity. Fourth, Hyde's proposal would eliminate the requirement that property owners wishing to contest seizures must post bonds of the lesser of $5,000 or 10 percent of the value of the property.

The Hyde Act would also allow forfeiture victims to sue the government for damages caused by the negligent handling or storage of property; such suits are currently prohibited.

Nadine Strossen, president of the American Civil Liberties Union, says that Hyde "makes a courageous and powerful case against the government's use of civil asset forfeiture to deprive individuals of fundamental rights." Forfeiture expert David B. Smith says the book is "at the top of my list for anyone interested in the protection of our property rights."