The Civil Asset Forfeiture Reform Act

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Mr. Chairman, distinguished members of the committee:

My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato's Center for ConstitutionalStudies.

I want to thank Chairman Hyde for inviting me to submit astatement to the committee on H.R. 1916, the Civil Asset ForfeitureReform Act. Fundamental reform of America's forfeiture law is longoverdue. Although this measure, in my judgment, does not go farenough, it is a step in the right direction. Chairman Hyde, whoserecent book on the subject I am pleased to have edited and the CatoInstitute is proud to have published, is to be commended for havingintroduced it and, more generally, for having taken up the issue offorfeiture reform when so many in Congress have ignored it.[1]

That the state of our forfeiture law today is a disgrace ishardly in question. A body of "law" that enables law enforcementpersonnel to stop motorists and seize their cash on the spot, todestroy boats, cars, homes, airplanes, and businesses in oftenfruitless drug searches, and even to kill and maim in the course ofseizure operations is out of control. Even lawyers, when they comeupon this area of the law for the first time, are taken aback bythe injustice--indeed, by the utter irrationality--of it all.

About the only people who defend forfeiture law today are thosein law enforcement who benefit from it, either as a "tool of theirtrade" or, more directly, by keeping the goods they seize--aconflict of interest so stark that it takes us to another age. Infact, that is just the problem with modern forfeiture law: inpractice as well as in theory, its roots are in notions that haveno place whatever in our legal system, animistic and authoritariannotions that countless people have died over the ages to bury andreplace with the rule of law.

The very styling of the relatively few cases that make it tocourt tells the story: United States v. $405,089.23 U.S.Currency[2]; United States v. 92 Buena VistaAvenue[3]; United States v. One Mercedes 560SEL.[4] Civil forfeiture actions are broughtagainst the property, not against the person. They are in remproceedings --not for the purpose of gaining jurisdiction over areal person but for the purpose of seizing property for forfeitureto the government. Fantastic as it may sound, it is the propertythat is charged.

How can that be? Finding its origins in the Old Testament and inmedieval doctrine, in the idea that animals and even inanimateobjects involved in wrongdoing could by sacrificed in atonement orforfeited to the Crown, modern forfeiture law, filtered throughearly American admiralty and customs law, has simply carriedforward, uncritically, the practice of charging things.

Thus, officials today can seize a person's property, real orchattel, without notice or hearing, upon an ex parte showing ofmere probable cause to believe that the property has somehow been"involved" in a crime. Neither the owner nor anyone else need becharged with a crime, for the action, again, is against the thing.The allegation of "involvement" may range from a belief that theproperty is contraband to a belief that it represents the proceedsof crime (even if the property is in the hands of someone notsuspected of criminal activity), that it is an instrumentality ofcrime, or that it somehow "facilitates" crime. And the probablecause showing may be based on nothing more than hearsay, innuendo,or even the paid, self-serving testimony of a party with interestsadverse to the property owner.

Once the property is seized, the burden is upon any owner whowants to get his property back to prove its "innocence"--not by aprobable-cause but by a preponderance-of-the-evidence standard. Yetthat is possible only where innocent-owner defenses have beenenacted or allowed. In defending the innocence of his accusedproperty, the owner must of course prove a negative. Moreover, hemust do that against the overwhelming resources of the government.And if he has been involved in activity that in any way might leadto criminal charges--however trivial or baseless those chargesmight ultimately prove to be--he has to weigh the risk ofself-incrimination entailed by any effort to get his property backagainst the value of the property. As a practical matter, theburden is simply too high for many innocent owners, who end upwalking away from their loss.

That, in a nutshell, is the state of modern American civilforfeiture law. It goes after property, not people--a ruse thatpermits the abandonment of elementary notions of due process. Andit does so, most notoriously, on the ground that the property isguilty of "facilitating" a crime--a doctrine that is infinitelyelastic.

Because others will testify before the committee about theirtragic experiences under this law--many examples of which are to befound in Chairman Hyde's book--let me not give further exampleshere but instead focus on two basic questions: (1) What is thelegitimate function and scope of forfeiture law? and (2) Does H.R.1916 comport with such law? As suggested earlier, I am of the viewthat our civil forfeiture law is fundamentally misguided andunsound and that we need for the most part not merely to reform butto abandon it, relegating it to the dustbin of history. Because Ihave discussed the basis for that conclusion in some detail in anessay that I have made available to the committee, let me simplysummarize my arguments here.[5]

Only people commit crimes. The so-called personificationdoctrine, which is the basis of our civil forfeiture law, is simplytoo fantastic to be taken seriously. Yet H.R. 1916 does nothing tochallenge that fiction. Under the bill, the government wouldcontinue to bring cases not against people but against property. Inquasi-criminal proceedings, the property would be charged, butthose proceedings would have few of the safeguards found in truecriminal proceedings. To be sure, the government would have theburden of proving, "by clear and convincing evidence, that theproperty was subject to forfeiture"--no small improvement. But thesubstantive law, the criteria for determining when property wouldbe "subject to forfeiture," would remain unchanged.

The personification doctrine is thus intimately connected to thesubstantive criteria for forfeiture. To see how that is so,however, it is useful to look first at the ordinary criminal case,where a real person is charged. In such a case, the aim of thecriminal proceeding is to determine the guilt or lack of guilt ofthe accused and, if guilty, to determine a remedy that will rightthe wrong at issue. Thus, not only compensation for crime victimsbut even punishment is, in this generic sense, "remedial." Inprinciple, at least, those and only those who commit crimes mustremedy their wrongdoing. The remedy is thus a function of the wrongto be remedied.

When we turn to forfeiture law, however, we are invited tobelieve that the property committed some "wrong," for it is theproperty that is charged and is "subject to forfeiture." Why? Thereare three basic rationales: the fruits of crime; contraband; andbecause the property "facilitates" crime. But are any of thoserationales remedial?

Clearly, the first is. If a man robs a bank, he can be made toforfeit his ill-gotten gain. Setting aside complications that arisefrom conversions and third-party victims, no one objects toforfeiture in this context, not least because the forfeiture isless "of the property" than "from the criminal," and is directlyrelated to the crime the forfeiture is meant to remedy. Theforfeiture, in short, remedies the wrong, at least in part. At thesame time, all of this can be accomplished ordinarily through anordinary criminal proceeding, without resorting to a standard civilforfeiture action.

But if the fruits-of-crime rationale for forfeiture is notordinarily problematic from a remedial perspective, neither is thecontraband rationale. To be sure, there is always disagreementabout what should be contraband--especially, today, regarding thenever-ending "war on drugs." But once Congress decides to make thepossession of alcohol, or drugs, or tobacco, or whatever illegal,then the seizure for forfeiture of that contraband can be said toremedy the "wrong" of possession.

The facilitation doctrine, however, is quite another matter, forwhen property is forfeited because it "facilitates" a crime--evenwhen it is the property of the criminal himself--there is noobvious connection between the "remedy" and the wrong to beremedied. 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 cattleon my ranch, "remedy" that crime? What is the connection, from aremedial perspective, between the crime and--let us be more candidthan the Supreme Court--the "punishment"? And if that connection ismissing when it is my property that is being forfeited, it ismissing a fortiori when the property of some third party isforfeited on the ground that the property "facilitated" mycrime.

Today, countless forfeitures take place under the facilitationdoctrine. The property is personified. It is then said to"facilitate" a crime--however tenuous the connection may be. As aresult, it is "subject to forfeiture." Never mind that theforfeiture will in no way remedy the crime--especially if the owneris not the criminal. Facilitation forfeiture can make no pretenseat being remedial because it need take no measure of the crime thatgives rise to it. Minor crimes can lead to major facilitationforfeitures. Ships can be forfeited over the discovery of amarijuana "roach." Apartment buildings, hotels, cars, and secondmortgages can be forfeited over illegal assignations.

The facilitation doctrine is boundless in practice because it isgroundless in principle. Yet it drives our forfeiture law andpractice 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 innocentpeople--offer anything but occasional relief. This substantivefoundation of so much of our civil forfeiture law, the handmaidenof the personification doctrine, must be torn up, root and branch.Only then can we hope to secure the idea that forfeiture, in a freesociety, is not a free-standing doctrine but a very limited elementin a remedial scheme that is rooted, ideally, in a rational systemof wrongs to be remedied.

H.R. 1916 gives limited relief. It does not address the heart ofthe matter.

Notes

1. Henry J. Hyde, Forfeiting Our PropertyRights: Is Your Property Safe From Seizure? (Cato Institute,1995).

516 U.S., 116 S.Ct. (1996).

113 S.Ct. 1126 (1993).

919 F.2d 327 (5th Cir. 1990).

Roger Pilon, Can American Asset Forfeiture LawBe Justified? 39 New York L.S.L.R. 311 (1994).

Roger Pilon

Committee on the Judiciary
United States House of Representatives