Henry Hyde Criticizes Forfeiture Abuse, Urges Reform

March/​April 1995 • Policy Report

“Much of what you may have learned in school or collegeabout your rights and liberties no longer applies. Increased governmentand police powers, rising criminal activity and violence, popular anxiety aboutdrug use — all have become justifications for curtailing theapplication of the Bill of Rights and the individual security itonce 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 Safefrom Seizure? published by the Institute.

Hyde’s book documents the increasing use of asset forfeitureostensibly as a crime‐​fighting measure. “Federal and state officialsnow have the power to seize your business, home, bank account,records, and personal property, all without indictment, hearingor trial,” he writes. “Everything you have can be takenaway at the whim of one or two federal or state officialsoperating in secret… . We are all potential victims.”

Between 1985 and 1993, the U.S. Department of Justice aloneseized assets worth $3.2 billion. State and local governments alsoseize property in this way. The doctrine underlying forfeitureholds that property implicated in crime can be seized even if itsowner is never charged or tried. In 80 percent of such cases, theowner is not charged. The standard of proof to be met by theauthorities is the minimal “probable cause” standard.If the owner wishes to regain possession, he has the onus ofproving in court that the property is “innocent”; hisstandard of proof is higher: a preponderance of the evidence. Insome cases, property has been seized for acts someone other thanthe owner performed.

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

Hyde argues that forfeiture not only tramples civil rights andfalls especially hard on minority Americans, it also gives law enforcementagencies access to huge amounts of cash and other valuablesoutside the normal appropriations process. He quotes former NewYork City police commissioner Patrick Murphy, who said that“the large monetary value of forfeitures … has created agreat temptation for state and local police departments to targetassets rather than criminal activity.”

Hyde notes that the “full flowering” of civil assetforfeiture has occurred under the auspices of the war on drugs.While he supports the anti‐​drug effort, he writes that the drugwar has been “perverted too often into a series of frontalattacks on basic American constitutional guarantees.”

To end the despotism of civil forfeiture, Hyde recommendsseveral reforms. His Civil Asset Forfeiture Reform Act firstwould shift the burden of proof to the government, forcing it toprove by clear and convincing evidence — not probable cause — that thealleged illegal act actually occurred and “that there is asufficient nexus between the property and the unlawful act.” Second,the Hyde Act would provide an attorney for victims of forfeiturewho cannot afford one, financed from the Department of Justice Assets ForfeitureFund. Third, the act would protect innocent property owners bypermitting as valid defenses in forfeiture cases the lack ofconsent to illegal activity on their premises and evidence of reasonable effortsto prevent that activity. Fourth, Hyde’s proposal would eliminatethe requirement that property owners wishing to contest seizuresmust post bonds of the lesser of $5,000 or 10 percent of thevalue of the property.

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

Nadine Strossen, president of the American Civil LibertiesUnion, says that Hyde “makes a courageous and powerful case againstthe government’s use of civil asset forfeiture to deprive individualsof fundamental rights.” Forfeiture expert David B. Smithsays the book is “at the top of my list for anyone interestedin the protection of our property rights.”