Testimony

The Civil Asset Forfeiture Reform Act 1997

Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives

Mr. Chairman, distinguished members of the committee:

My name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato’s Center for Constitutional Studies.

I want to thank you, Mr. Chairman, for inviting me to testify before the committee on H.R. , the Civil Asset Forfeiture Reform Act of 1997. Your recent book on forfeiture, which I am pleased to have edited and the Cato Institute is proud to have published, is a refreshing call for reform. You are to be commended for having written it, for having introduced this bill, and, more generally, for having taken up the issue of forfeiture reform when so many in Congress have ignored it.

That the state of our forfeiture law today is a disgrace is hardly in question. A body of “law” that enables law enforcement personnel to stop motorists and seize their cash on the spot, to seize and sometimes destroy boats, cars, homes, airplanes, and businesses in often fruitless drug searches, and even to kill and maim in the course of seizure operations is out of control. Even lawyers who come upon this area of the law for the first time are taken aback by the injustice and utter irrationality of it all.

About the only people who defend forfeiture law today are those in law enforcement who benefit from it, either as a “tool of their trade” or, more directly, by keeping the goods they seize—a conflict of interest so stark that it takes us to another age. In fact, that is just the problem with modern forfeiture law: in practice as well as in theory, its roots are in notions that have no place whatever in our legal system, animistic and authoritarian notions that countless people have died over the ages to bury and replace with the rule of law.

The very styling of the relatively few cases that make it to court tells the story: United States v. $405,089.23 U.S. Currency ; United States v. 92 Buena Vista Avenue ; United States v. One Mercedes 560 SEL. Civil forfeiture actions are brought against the property, not against the person. They are in rem proceedings —not for the purpose of gaining jurisdiction over a real person but for the purpose of seizing property for forfeiture to the government. Fantastic as it may sound, it is the property that is charged.

How can that be? Finding its origins in the Old Testament and in medieval doctrine, in the idea that animals and even inanimate objects involved in wrongdoing could by sacrificed in atonement or forfeited to the Crown, modern forfeiture law, filtered through early American admiralty and customs law, has simply carried forward, uncritically, the practice of charging things.

Thus, officials today can seize a person’s property, real or chattel, without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property has somehow been “involved” in a crime. Neither the owner nor anyone else need be charged with a crime, for the action, again, is against the thing. The allegation of “involvement” may range from a belief that the property is contraband to a belief that it represents the proceeds of crime (even if the property is in the hands of someone not suspected of criminal activity), that it is an instrumentality of crime, or that it somehow “facilitates” crime. And the probable cause showing may be based on nothing more than hearsay, innuendo, or even the paid, self-serving testimony of a party with interests adverse to the property owner.

Once the property is seized, the burden is upon any owner who wants to get his property back to prove its “innocence”—not by a probable-cause but by a preponderance-of-the-evidence standard. Yet that is possible only where innocent-owner defenses have been enacted or allowed. In defending the innocence of his accused property, the owner must of course prove a negative. Moreover, he must do that against the overwhelming resources of the government. And if he has been involved in activity that in any way might lead to criminal charges—however trivial or baseless those charges might ultimately prove to be—he has to weigh the risk of self-incrimination entailed by any effort to get his property back against the value of the property. As a practical matter, the burden is simply too high for many innocent owners, who end up walking away from their loss.

That, in a nutshell, is the state of much of our modern civil asset forfeiture law, despite periodic efforts by Congress to reform some areas, and despite court challenges in recent years that have succeeded, when they have, only in chipping away at the doctrine. It is a body of law that enables prosecutors to go directly against property—a ruse that permits the abandonment of elementary notions of due process. And it does so, most notoriously, on the ground that the property is guilty of “facilitating” a crime—a doctrine that is infinitely elastic.

Because others will testify before the committee about their tragic experiences under this law—many examples of which you set out in your book, Mr. Chairman—let me not give further examples here but instead focus on two basic questions: (1) What is the legitimate function and scope of forfeiture law? and (2) Does this bill comport with such law?

As suggested above, I am of the view that our civil forfeiture law is fundamentally unsound and that we need for the most part not merely to reform but to abandon it, relegating it to the dustbin of history from which it came. Because I have discussed the basis for that conclusion in some detail in an essay that I have attached to this statement, let me simply summarize my arguments here.

Only people commit crimes. The idea that property can be “guilty”—an idea that flows from the so-called personification doctrine, which is the basis of our civil forfeiture law—is simply too fantastic to be taken seriously. Unfortunately, however, this bill does nothing to challenge that “hoary doctrine”—as you characterized the guilty-property fiction in your book, Mr. Chairman. Under the bill, the government could continue to bring cases not against people but against property. In quasi-criminal proceedings, the property would be charged, but those proceedings would have few of the safeguards found in true criminal proceedings. To be sure, the government would have the burden of proving, “by clear and convincing evidence, that the property was subject to forfeiture”—no small improvement. But the substantive law—the criteria for determining when property would be “subject to forfeiture”—would remain unchanged.

Thus, even under this proposal for reform, the personification doctrine remains the linchpin of our forfeiture law, even if we no longer say that in so many words. To see how the doctrine cannot be justified, it is useful to look first at the ordinary criminal case, where a real person is charged. In such a case, the aim of the criminal proceeding is to determine the guilt or non-guilt of the accused and, if guilty, to determine a remedy that will right the wrong at issue. Thus, not only compensation for crime victims but even punishment is, in this generic sense, “remedial”—a term the Court, in forfeiture cases, has found it all but impossible to define or apply in a principled way. Ideally, those and only those who commit crimes should remedy their wrongdoing. The remedy should be a function of the wrong to be remedied: it should “fit” the wrong, whether it takes the form of compensation or punishment proper or both. And property should come into play only insofar as it may satisfy one of those sanctions against the person.

When we turn to forfeiture law, however, we are invited to shift our focus from the accused person to some property (of his or of someone else) and invited further to believe that the property committed some “wrong,” for it is the property that is charged and is “subject to forfeiture.” Why? Why go after the property rather than, or in addition to, the accused? There are indefensible practical reasons: e.g., a prosecutor may think the evidence too thin for a criminal indictment; but since forfeiture concerns “only property,” he may be less reluctant to argue, ex parte, that there is probable cause to believe the property “facilitated” a crime.

Such practical reasons do not go to the underlying theory of the matter, however. By way of deeper “justification,” there are three basic rationales for forfeiture: to return ill-gotten goods; to remove contraband; and, of particular importance for our purposes, because the property “facilitates” crime. What we need to ask, then, is whether any of those rationales can be justified as remedial.

Clearly, the first is. If a man robs a bank, we can seize the ill-gotten gain not for forfeiture to the government but for return to the bank. Setting aside complications that might later arise from conversions and third-party victims, no one objects to forfeiture in this context, not least because the forfeiture is less “of the property” than “from the criminal,” and is directly related to the crime the forfeiture is meant to remedy. The forfeiture, in short, remedies the wrong, at least in part. But we don’t need forfeiture—much less the personification doctrine—to bring about that end. An ordinary criminal proceeding will do.

But if the fruits-of-crime rationale for forfeiture is not ordinarily problematic from a remedial perspective, neither is the contraband rationale. To be sure, there is always disagreement about what should be contraband—especially, today, regarding the never-ending “war on drugs.” But once Congress decides to make the possession of alcohol, or drugs, or tobacco, or whatever illegal, then the seizure for forfeiture of that contraband can be said to remedy the “wrong” of possession. Here too, however, it is not “guilty property,” or the personification doctrine, that justifies this remedy.

We come, then, to the facilitation doctrine proper. When property is forfeited because it “facilitates” a crime—even when it is the property of the criminal himself—there is no obvious connection between the “remedy” and the wrong to be remedied. If I make a call from my home to consummate a drug deal, how does the forfeiture of my telephone, or my home, or the livestock on my property, “remedy” that crime? What is the connection, from a remedial perspective, between the crime and—let us be more candid than the Supreme Court—the “punishment”? And if that connection is missing when it is my property that is being forfeited, it is missing a fortiori when the property of some third party is forfeited on the ground that his property “facilitated” my crime.

Today, countless forfeitures take place under the facilitation doctrine. The property is personified. It is then said to be “guilty” because it “facilitated” a crime—however tenuous the connection may be. As a result, it is “subject to forfeiture.” Never mind that the forfeiture will in no way remedy the crime—especially if the owner is not the criminal. Facilitation forfeiture can make no pretense at being remedial because it need take no measure of the crime that gives rise to it. Minor crimes can lead to major facilitation forfeitures. Ships can and have been forfeited over the discovery of a marijuana “roach” on board. Apartment buildings, hotels, cars, and second mortgages can and have been forfeited over illegal activities “involving” them.

The facilitation doctrine is boundless in practice because it is groundless in principle. Yet it drives our forfeiture law and practice today, and this bill leaves it in place. No “nexus” refinements will solve the problem. Nor will refinements of the “innocent-owner defense,” which effectively deputizes innocent people. The inclusion of that defense in all federal forfeiture statutes is to be welcomed, of course, even if the bill leaves the burden on the owner to prove his innocence, and even if such proof may be difficult or may be otherwise problematic. (Suppose, for example, that my son makes a drug deal from our house, on a phone that is tapped at the other end. In principle, under this bill, I am now put to a choice between reporting my son to the police or losing my home for its having “facilitated” a crime.) None of this, however, goes to the facilitation rationale for forfeiture.

This substantive foundation of so much of our civil forfeiture law, the handmaiden of the personification doctrine, must be torn up, root and branch. Only then can we hope to secure the idea that forfeiture, in a free society, is not a free-standing doctrine but a very limited element in a remedial scheme that is rooted, in the end, in a rational system of wrongs to be remedied.

In summary, I commend you again, Mr. Chairman, for taking on this issue and for proposing this legislation. The bill does not, in my judgment, go far enough, for the reasons I have stated. Nevertheless, it would bring about a significant improvement over the situation we have today. Thus, for this reason alone I support it. Thank you.