The Civil Asset Forfeiture Reform Act 1997

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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 you, Mr. Chairman, for inviting me to testifybefore the committee on H.R. , the Civil Asset Forfeiture ReformAct of 1997. Your recent book on forfeiture, which I am pleased tohave edited and the Cato Institute is proud to have published, is arefreshing call for reform. You are to be commended for havingwritten it, for having introduced this bill, and, more generally,for having taken up the issue of forfeiture reform when so many inCongress have ignored it.

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, toseize and sometimes destroy boats, cars, homes, airplanes, andbusinesses in often fruitless drug searches, and even to kill andmaim in the course of seizure operations is out of control. Evenlawyers who come upon this area of the law for the first time aretaken aback by the injustice and 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 ;United States v. 92 Buena Vista Avenue ; United States v. OneMercedes 560 SEL. Civil forfeiture actions are brought against theproperty, not against the person. They are in rem proceedings --notfor the purpose of gaining jurisdiction over a real person but forthe 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 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 much of our modern civilasset forfeiture law, despite periodic efforts by Congress toreform some areas, and despite court challenges in recent yearsthat have succeeded, when they have, only in chipping away at thedoctrine. It is a body of law that enables prosecutors to godirectly against property--a ruse that permits the abandonment ofelementary notions of due process. And it does so, mostnotoriously, 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 theirtragic experiences under this law--many examples of which you setout in your book, Mr. Chairman--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 thisbill comport with such law?

As suggested above, I am of the view that our civil forfeiturelaw is fundamentally unsound and that we need for the most part notmerely to reform but to abandon it, relegating it to the dustbin ofhistory from which it came. Because I have discussed the basis forthat conclusion in some detail in an essay that I have attached tothis 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 personificationdoctrine, which is the basis of our civil forfeiture law--is simplytoo fantastic to be taken seriously. Unfortunately, however, thisbill does nothing to challenge that "hoary doctrine"--as youcharacterized the guilty-property fiction in your book, Mr.Chairman. Under the bill, the government could continue to bringcases not against people but against property. In quasi-criminalproceedings, the property would be charged, but those proceedingswould have few of the safeguards found in true criminalproceedings. To be sure, the government would have the burden ofproving, "by clear and convincing evidence, that the property wassubject to forfeiture"--no small improvement. But the substantivelaw--the criteria for determining when property would be "subjectto forfeiture"--would remain unchanged.

Thus, even under this proposal for reform, the personificationdoctrine remains the linchpin of our forfeiture law, even if we nolonger say that in so many words. To see how the doctrine cannot bejustified, it is useful to look first at the ordinary criminalcase, where a real person is charged. In such a case, the aim ofthe criminal proceeding is to determine the guilt or non-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"--a termthe Court, in forfeiture cases, has found it all but impossible todefine or apply in a principled way. Ideally, those and only thosewho commit crimes should remedy their wrongdoing. The remedy shouldbe a function of the wrong to be remedied: it should "fit" thewrong, whether it takes the form of compensation or punishmentproper or both. And property should come into play only insofar asit may satisfy one of those sanctions against the person.

When we turn to forfeiture law, however, we are invited to shiftour focus from the accused person to some property (of his or ofsomeone else) and invited further to believe that the propertycommitted some "wrong," for it is the property that is charged andis "subject to forfeiture." Why? Why go after the property ratherthan, or in addition to, the accused? There are indefensiblepractical reasons: e.g., a prosecutor may think the evidence toothin for a criminal indictment; but since forfeiture concerns "onlyproperty," he may be less reluctant to argue, ex parte, that thereis probable cause to believe the property "facilitated" acrime.

Such practical reasons do not go to the underlying theory of thematter, however. By way of deeper "justification," there are threebasic rationales for forfeiture: to return ill-gotten goods; toremove 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 asremedial.

Clearly, the first is. If a man robs a bank, we can seize theill-gotten gain not for forfeiture to the government but for returnto the bank. Setting aside complications that might later 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. But wedon't need forfeiture--much less the personification doctrine--tobring about that end. An ordinary criminal proceeding will do.

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. Here too, however, it is not"guilty property," or the personification doctrine, that justifiesthis remedy.

We come, then, to the facilitation doctrine proper. Whenproperty is forfeited because it "facilitates" a crime--even whenit is the property of the criminal himself--there is no obviousconnection between the "remedy" and the wrong to be remedied. If Imake a call from my home to consummate a drug deal, how does theforfeiture of my telephone, or my home, or the livestock on myproperty, "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 his property "facilitated" mycrime.

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

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. The inclusion of that defense in all federal forfeiturestatutes is to be welcomed, of course, even if the bill leaves theburden on the owner to prove his innocence, and even if such proofmay be difficult or may be otherwise problematic. (Suppose, forexample, that my son makes a drug deal from our house, on a phonethat is tapped at the other end. In principle, under this bill, Iam now put to a choice between reporting my son to the police orlosing 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 forfeiturelaw, the handmaiden of the personification doctrine, must be tornup, root and branch. Only then can we hope to secure the idea thatforfeiture, in a free society, is not a free-standing doctrine buta very limited element in a remedial scheme that is rooted, in theend, in a rational system of wrongs to be remedied.

In summary, I commend you again, Mr. Chairman, for taking onthis 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 overthe situation we have today. Thus, for this reason alone I supportit. Thank you.

Roger Pilon

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