United States. Congress. House. Committee on the J.

Civil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 online

. (page 25 of 37)
Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 25 of 37)
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to victims.

5. Burden of proof. Civil forfeiture statutes should be amended to provide that the
government bears the burden of proof regarding the forfeitability of property at
trial. That is, the government should be required to prove, by a preponderance of
the evidence, that the crime giving rise to the forfeiture occurred, and that the prop-
erty bears the required relationship to the ofTense.

6. Time limits. To enhance the ability of property owners to contest forfeiture ac-
tions. Congress should extend and maJte uniform the time limits for filing claims
in civil and administrative forfeiture proceedings.

7. Third party interests in criminal cases. Congress should amend the provisions
of the criminal forfeiture statutes regarding pre-trial restraining orders to provide
a mechanism for addressing the interests oi third parties in a timely manner that
does not unduly interfere with the criminal trial.

8. Attorneys fees. The civil and criminal forfeiture statutes should contain a mech-
anism by which the court may make an early determination as to whether seized
or restrained property may be made available to a criminal defendant to pay attor-
neys fees.

9. Restraint of substitute assets. If Congress provides for the pre-trial restraint of
substitute assets in criminal cases, it should exempt assets needed to pay attorneys
fees, other necessary cost of living expenses, and expenses of maintaining the re-
strained assets.



262

10. Forfeiture of criminal proceeds. No person has a right to retain the proceeds
of a criminal act. Accordingly, Congress should provide for the civil and criminal for-
feiture of the proceeds of all criminal offenses, and it should authorize the govern-
ment to restore forfeited property to the victims of the offense. In particular, this
change in the law will eliminate the risk of overuse of the money laundering statues
to forfeit proceeds and restore property.

11. Scope of criminal forfeiture. To avoid the necessity of filing and defending suc-
cessive criminal and civil forfeiture proceedings arising out olthe same course of
conduct when property is held jointly by defendants and non-defendants. Congress
should provide a mechanism for adjudicating the forfeitability of the non-defendants'
interests in the forfeited property as part of the ancillary proceeding in criminal
cases.

12. Facilitating property. When projperty used to facilitate the commission of a
criminal offense is made subject to forfeiture. Congress should enact a standard de-
fining the required nexus between property and the offense.

13. Availability of criminal forfeiture. Current law outside of the drug enforcement
context requires the government to bring most forfeiture actions as civil actions. The
statutes should be amended to give the government the option, in all instances
where civil forfeiture is presently authorized, of bringing a criminal forfeiture action
as part of the criminal indictment in accordance with the standard rules for crimi-
nal forfeiture.

Mr. Hyde. Mr. Kappelhoff.

STATEMENT OF MARK J. KAPPELHOFF, LEGISLATIVE COUN-
SEL, ON BEHALF OF THE AMERICAN CIVIL LIBERTIES
UNION

Mr. Kappelhoff. Thank you, Mr. Chairman. On behalf of the
American Civil Liberties Union, thank you for inviting me to share
our comments with you regarding civil asset forfeiture laws and
their need for reform.

Imagine for a moment, living in a society where a citizen is pre-
sumed to be guilty and innocence must be proven, where you,
members of your family, and your property and possessions can be
seized almost at the whim of the Grovernment, where you can be
punished before having a trial, where the punishment imposed is
oftentimes in excess of the nature of the actual offense, and where
you are left legally helpless because you do not have the right to
an attorney and the court is under no obligation to provide you an
attorney.

Surprisingly, that imaginary society actually exists. It is the
United States under the civil asset forfeiture laws. Although the
parade of horribles I just listed clearly violate some of the bedrock
constitutional doctrines upon which our Nation was founded, under
the current civil asset forfeiture laws in our country, these abuses
are all too commonplace.

Mr. Chairman, it is time to end these abuses by overhauling the
civil asset forfeiture system in our country and restore to the
American people the fundamental rights and liberties that are en-
shrined in our Constitution.

I would like to take a moment to commend Chairman Hyde, for
your leadership and longstanding commitment to reforming civil
asset forfeiture in our country. You began this legislative journey
back in 1993 with the assistance of the ACLU and NACDL. We
commend your efforts to pursue the reform that is so desperately
needed in this area.

I would like to take a moment and describe some of the problems
with asset forfeiture and then go into the bill. It is not surprising
that civil forfeiture has been especially attractive to law enforce-



263

ment authorities because success demands very little in the way of
proof or connection to actual wrongdoing.

Civil asset forfeiture originally was championed by law enforce-
ment officials as a powerful weapon to fight the war on drugs. In-
deed, it was thought of as some form of poetic justice, seizing the
assets of major drug traffickers and using these assets to fund le-
gitimate law enforcement initiatives. However, as a result of the
ease with which law enforcement authorities are able to secure for-
feitures, the use and abuse of forfeiture has soared. Unfortunately
in their zeal, law enforcement agencies that have turned civil for-
feiture into a nightmare come true for thousands of ordinary people
who have minor brushes with the law or who are completely inno-
cent of any wrongdoing. Tragically, scores of innocent citizens and
the Constitution have become casualties in this "war."

Probably the most troubling abuse in the forfeiture system re-
garding the victims involves the victimization of minorities through
the use of racially based criteria to unlawfully and disproportion-
ately target and stop African-American and Hispanic travelers. As
you heard this morning, Willie Jones, an African-American
landscaper, had the misfortune of experiencing this humiliation. He
supposedly fit a so-called drug courier profile; that is, an African-
American paying for a round-trip airline ticket with cash. Unfortu-
nately, Mr. Jones's plight is not that unusual. There appears to be
extensive use of racially based profiles to determine law enforce-
ment targets.

For example, cited in your book in the case U.S. v. Taylor, in the
Memphis Airport 75 percent of air travelers stopped were black;
yet African-Americans amounted to only 4 percent of the flying
public. In the Pittsburgh Press, it is reported that with the forfeit-
ure of money and no drugs, 77 percent of those individuals involved
were African-Americans, Hispanic, and Asian motorists.

Further abuse is found in what is sometimes described as law
enforcement extortion. This involves the practice of offering out of
court cash settlements to otherwise innocent or minimally culpable
individuals whose property is seized in exchange for return of their
property. Debra V. Hill's case illustrates this practice in action. She
and her family were guests in a house that police raided. During
the raid, the police discovered a small amount of methamphet-
amine in a box of clothing that did not belong to her. The police
confiscated the $550 in her possession. She was so desperate for
the cash that she agreed to forfeit $250 of this money to the pros-
ecutor in return for the remaining $300. When the charges against
her were dropped, she did not receive the balance of her money.

A final problematic area that needs to be looked into is the lucra-
tive business of asset forfeiture that has created a strong incentive
or temptation for law enforcement officials to pursue assets at the
expense of pursuing convictions. The extensive use of civil forfeit-
ure by Federal and State law enforcement authorities has led to
the confiscation of billions of dollars in drug assets.

All the money and properties seized by State and Federal offi-
cials is deposited back into the budgets of the seizing agencies.
What was originally seen as a means of forcing criminals to pay for
their own apprehension and legitimate law enforcement initiatives
has become an incentive for local, State, and Federal officials to



264

seize property and then to auction justice to the highest bidder. As
a result, major drug dealers are allowed to barter their way out of
lengthy prison terms by prosecutors who have become intoxicated
with the thought of huge sums of money to be obtained from drug
forfeiture assets. Conversely, low level drug users with no assets or
no information to swap are exposed to the full wrath of the harsh
drug laws — mandatory minimums and nonparoleable sentences.
These laws were specifically designed for the worst drug offenders.
Unfortunately, they have been unleashed upon the least culpable.

Last fall, two investigative reporters from the Boston Globe un-
covered the distressing truth about this practice in action in the
State of Massachusetts. What they found in reviewing the major
drug trafficking cases in which $10,000 or more was forfeited, 75
percent of the drug dealers ended up charged with either lesser
crimes or were allowed to plead to lower sentences. Some even re-
ceived no time in jail. These statistics indicate that crime in fact
may pay. All you need to do is forfeit the right amount of assets
to obtain your get-out-of-jail-free card.

But, once again, it seems that the poor actually pay the greatest
price under forfeiture laws with their liberty and their property.

To be sure, the abuses discussed clearly make the case for civil
asset forfeiture reform. We endorse the provisions of H.R. 1916, but
I would like to highlight legislation that we ask to be enacted into
law.

The most important provision is shifting the burden of proof to
the Grovernment and the fact that they should prove it by a clear
and convincing evidence standard. Under current law, the Grovern-
ment is simply required to meet its low standard of proof, probable
cause that the property is subject to forfeiture.

The second aspect of H.R. 1916 is the innocent owner defense.
This provision specifically provides for the protection of owners
from civil forfeiture if they can show that either they had no knowl-
edge of the criminal misuse of their property or that they consented
to the illegal activity. The ACLU believes that this provision would
provide additional protection for innocent property owners and en-
sure uniform enforcement of forfeiture laws.

The third aspect and we believe a critical aspect of the legislation
is providing for the appointment of counsel for indigent defendants.
This provision breathes meaningful life into the entire body of the
legislation. Without it individuals are simply left helpless in a com-
plex web of forfeiture laws. Examples this morning that we heard
showed exactly why this is critical. Mr. Jones would have had no
ability to obtain his assets except for Mr. Edwards' fine work and
other individuals that have the same plight.

Since the civil forfeiture system can be as punitive as the crimi-
nal system, it is essential that those exposed to either system re-
ceive legal counsel to protect their rights and liberties. The ACLU
believes that this provision is absolutely essential in order to en-
sure that individuals can avail themselves of the other reforms con-
tained in H.R. 1916.

I am at a loss to determine why the Grovernment opposes the
right to counsel in the legislation. The Department of the Treasury
mentioned today they oppose the right to counsel provision. The
only common-sense proposal consistent with preserving fundamen-



265

tal rights and liberties is the right to counsel. It only makes the
system fair and will prevent injustices. Could it be that 80 percent
of these cases go uncontested and the right to counsel would make
this statistic lower, or that the funding for these lawyers comes out
of the proceeds that the Government has been seizing?

I would like to quote what Justice Black mentioned in Gideon v.
Wainwright: "Any person haled into court, who is too poor to hire
a lawyer, cannot be assured a fair trial unless counsel is provided
for him." I believe that provision should be applicable to civil asset
forfeiture.

We support H.R. 1916 and urge its adoption. Civil forfeiture as
a whole stands outside the doctrines of due process and criminal
procedure. Despite the widespread use and misuse of civil forfeit-
ure, it is an arcane legal doctrine which exists merely because of
its historical foundation and its fiscal advantage to law enforce-
ment agencies.

While promoted as a civil cause of action, its ramifications are
more akin to the harsh punitive aspects associated with the crimi-
nal system, without any of the important fundamental constitu-
tional protections for civil rights and liberties. This leaves many
citizens unprotected from law enforcement's overzealous and
unencumbered use of these laws.

As stated earlier, the ACLU believes that all civil forfeiture
schemes should be abandoned. However, we do support H.R. 1916
and other meaningful reform efforts which would mitigate the
harshness of ci\al asset forfeiture and incorporate principles of due
process.

We look forward to working with you and your staff in fashioning
the appropriate legislation. Thank you.

Mr. Hyde. Thank you, Mr. Kappelhoff.

[The prepared statement of Mr. Kappelhoff follows:]



266

Prepared Statement of Mark J. Kappelhoff, Legisijvtive Counsel, on Behalf
OF THE American Civil Liberties Union



INTRODUCTION

Mr. Chairman and Members of the Judiciary Committee. On behalf of the Amencan Civil
Liberties Union, thank you for inviting me to share our comments with you regarding civil asset
forfeiture laws and their need for reform.

Imagine for a moment, living in a society where an individual is presumed to be guiln. and
innocence musi be proven, where you. members of your family, and your propern and possessions
can be seized at the whim of the government, where you can be punished before e\ en haxing a trial,
where the punishment imposed is often times in excess of the nature of the actual otTense and where
you are left legally helpless because you do not have the right to an attomey, cannot afford one in any
e\ ent. and the court is under no obligation to provide you an attomey.

Surprisingly, this imaginary society actually exists: it is our own - The United States of
.■\menca. Although the parade of horribles that I just listed clearly violate some of the bedrock
constitutional doctrines upon which our nation was founded, under the current ci\ il asset forfeinire
laws in our countn . these abuses are all too commonplace. Mr Chairman, it is time to end these
abuses by overhauling the civil asset forfeiture system in our country and restore to Amencan
citizens the fundamental nghts and liberties that are enshnned in our Constitution

The .ACLU believes that all civil forfeiture schemes inherently violate fundamental
constitutional nghts. including the nght not to be depnved of property without due process of law
and the nght to be tree from punishment that is disproponionate to the offense While we belie\e



267

the practice ofciMi tbrteiture should be abandoned, we support meaniniitul reform etTons which
would miiiiiaie its harshness and incorporate equitable provisions and pnnciples of due process.
H.R. 1 9 1 6 addresses many of our concerns and takes an important first step that is long overdue This
bill would reform forfeiture proceedings to provide property owners with some significant
procedural protections. It would also make it more difficult for government to confiscate the
property of innocent owners - people who were not aware of or did not consent to. any illicit activir>
m connection with their propert>'. These reforms are badly needed because innocent propertx-
owners, or those who have commirted only minor infractions are now subieci to draconian
punishments and property depnvations with rather limited constitutional or procedural protections.
Because of these and other imponant procedural protections it provides, the .ACLU endorses this
legislation and urges Congress to pass the Civil Asset Forfeiture Reform Act this year.

I would like to commend Chairman Hyde for his leadership and long standing commitment
to reforming civil asset forfeiture in our country. Mi Chairman, you began this legislative journey,
with the support of the American Civil Liberties Union and the National Association of Cnminal
Defense Lawyers, back in 1993 with the introduction of the H.R. 2417. the ""Asset Forfeiture Reform
Act of 1993 " You followed this up by making a powerful case for civil asset forfeiture reform m
your book in which you documented and exposed many of the abuses within the asset forfeiture
svstem It IS now nme to finish the izood work vou stoned.



■Vfi' Henn. 1 Hsde. ! •riciiiiif^ Yniii I'mperiv lii\:his Is Yniir I'rnficrn Scih' hriim Sfiiiirc ' i 1'3Q5)



268



PROBLEMS WITH CIVIL ASSET FORFEITIRE

The roots of civil forteiture can be traced back to medieval England uherc kinys used the
procedure to seize the propern of disloyal nobles. The Amencan model tor cnil tbneiture dates
back to the eighteenth-century where forfeiture laws were used to combat piracN and customs
violations. Under this system, courts permitted the government to seize the offending ship as a cimI
remedx . rather than requiring cnminal prosecution of the owners. These owners were usually not
Amencan and difficult to locate for cnminal prosecution. Thus, permitting the government to
proceed against the vessel under a civil forfeiture action, the government could punish an owner tor a
cnme with mmimal evidence and without any of the constitutional protections atforded a cnminal
defendant.

The modem era of civil asset forfeiture flows from these same archaic legal concepts. It is
based on the legal fiction that inanimate objects may be found guilty and condemned. Thereb> . the
object or property is subject to seizure and forfeiture to the government. Pursuant to this construct
the guilt or innocence of the owner is irrelevant, because the forfeiture action is against the "object"
not the "owner "" In fact, no cnminal arrest or conviction is even necessary to subject property to
forfeiture. Government authonties must simply satisfy a requirement of probable cause that the
property was used in an illicit activity or was purchased with funds from illicit activity in order to
subiect the property' to forfeiture. As a result, civil forfeiture constitutes a dangerous, collateral
weapon for law enforcw-ment agencies where criminal convictions are more difTicuit to come b\

The protound inequirv of civil asset forfeiture system is exemplified b\ the distinction
between cnminal and cimI forteiture. Cnminal forfeiture is imposed in a cnminai proceeding
directed aiiainsi an mariiluul for his or her aliened misconduct While a defendant in a cnminal



269



forfeiture prosecution is entitled to all the constitutional and procedural protections associated with
the cnminal process, a person facing civil forfeiture, on the other hand, receives none of the
constitutional safeguards associated with the doctnnes of due process and cnminal procedure.

The irony and unfairness created under this system is worth illustrating. A major drug
trafficker prosecuted under criminal forfeiture statutes is correctly afforded all of the due process and
constitutional protections go\eming the forfeiture of their property. Whereas, an innocent 72 \ear
old grandmother, whose grandson, without her knowledge, allegedly makes a drug sale from her
from porch is subject to losing her home and possessions without the benefit of indicnnent. heanng.
tnal. or any other constitutional or procedural protection - not even the right to counsel "

Not surpnsingly. ci\il forfeiture has been especially attractive to law enforcement authorities
because success demands ver>' little in the v«iy of proof or connection to actual wrong. Civil asset
forfeiture originally was championed by law enforcement officials as a powerful weapon to fight the
"war on drugs." Indeed, it was thought of as some form of poetic justice: seizing the assets of major
drug traffickers and using these assets to fund legitimate law enforcement initiatives. However, as a
result of the ease uith which law enforcement authorities are able to secure forfeitures, the use and
abuse of forfeiture has skyrocketed. In some localities, it is being used against e\erylhing fi-om drugs
to drunk dnving to prostitution. Unfortunately, in their zeal, law enforcement agencies have turned
civil forfeiture into a nightmare come true for thousands of ordinary people who have minor brushes
with the law or who are completely innocent of wrongdoing. Tragically, scores of innocent citizens
and the Constinition have become casualties in this "'war ""



270



While civil tbrteiture proceedings have been held not to require the fundamental protections
essential to a cnminal proceedins.'. they are nevenheless penal. Indeed, the Supreme Court has
recognized that in certain circumstances civil forfeiture may be punitive in nature and thas regulated
bv the Excessive Fines Clause of the Eighth Amendment.^ The legal fiction that surrounds ci\ il asset
forfeiture provides no comfort for those individuals who find themselves exposed to the harsh
penalties associated with the cnmmal system without any of the fundamental constitutional and
procedural protections inherent to the cnminal justice system.

.ABISES IN CIML ASSET FORFEITURE: THE V KTIMS

The limited constitutional protections for individuals subjected to civil forteimre laws
coupled with unbridled, permissive law enforcement authority, creates a civil forfeiture system that
is npe for abuse. Particularly appalling is the list of cases documenting the disproportionate
victimization of minorities through the use racially based criteria to unlawfiilly target and stop
African-American and Hispanic travelers. Willie Jones, an African American landscaper. had the
misfortune to expenence this humiliation. He had S9600 in cash seized fi^om him at the NashMlle
airport simply because he fit a so called "drug courier profile" - that is, an African American paying
for a round-tnp airline nckei with cash He acixially planned to use the money to by landscape
materials. UnfonunateK. Mr Jones" plight is not that unusual Several investigative media repons



■ Illustration is based upon a real ca>e documented in the statement of James Hovle. submitted to the House
Commmee on Government Operarons. Legislation and National Secumv Subcommittee. Re The Federal Asset
Forfeiture Program. Sepiember .'" . '.•^'^Z

\Scl: I'..','.. Austin \ I- niied '^taie> . ' 1.' S Cl 2801 (1993). Mexander \ L niied Siaieb . I IT- S Cl I'hoi !99.^i
' .Andrew Schneider & Man P Fiinerty. I )nif: .■ijieni.^ iur Mon: Likely m Sio/> Miiioiiik-s. Pitt Press. Auu I ;..
1991. at .M



271



have chronicled and exposed how civil forteiiure is panicuiarly harsh on minonties as a result otthe
extensive use of racially based profiles to determine law enforcement targets. "

Further abuse is found in what is sometimes described as law enforcement extortion This
involves the practice of offenng "out of court" cash settlements to otherwise innocent or minimalK
culpable individuals whose propertv- was seized in exchange for a return of their propert\ Debra V
Hill's case illustrates this practice in action. She and her family were guests m a house that police
raided. During the raid, the police discovered a small amount of methamphetamine m a box oi'
clothing that did not belong to her The police confiscated the S550 in her possession She wa. - so
desperate for the cash that she agreed to forfeit S250 to the prosecutor in return for the remaining
S300 WTien the charges against her were dropped, she did not receive the balance of her monev
And there is the case of Kevin Perry, a gravel pit laborer from Ossipee, New Hampshire. After he
and his wife pleaded guilty to the misdemeanor of growing four marijuana plants, the United Sutes
sought to forfeit their mobile home, worth $22,000. Following a fifteen-month battle to avoid
homelessness. the government finalK agreed to remm the home for S2500. In order to pav the



Online LibraryUnited States. Congress. House. Committee on the JCivil Asset Forfeiture Reform Act : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 1916 ... July 22, 1996 → online text (page 25 of 37)