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 34 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 34 of 37)
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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



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

' 113 S.Ct. 1126 (1993) .
^ 919 F.2d 327 {5th Cir. 1990).

2



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to criminal charges- -however trivial or baseless those charges
might ultimately pro -e 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 modern American civil
forfeiture law. It goes after property, not people- -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 are to be
found in Chairman Hyde's book - 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 H.R.
1916 comport with such law? As suggested earlier, I am of the view
that our civil forfeiture law is fundamentally misguided and
unsound and that we need for the most part not merely to reform but
to abandon it, relegating it to the dustbin of history. Because I
have discussed the basis for that conclusion in some detail in an
essay that I have made available to the committee,^ let me simply
summarize my arguments here.

Only people commit crimes. The so-called personification
doctrine, which is the basis of our civil forfeiture law, is simply
too fantastic to be taken seriously. Yet H.R. 1916 does nothing to
challenge that fiction. Under the bill, the government would
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.

The personification doctrine is thus intimately connected to
the substantive 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 the
criminal proceeding is to determine the guilt or lack of 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." In



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



360



principle, at least, those and only those who commit crimes must
emedy their wrongdoing. The remedy is thus a function of the
wrong to be remedied.

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

Clearly, the first is. If a man robs a bank, he can be made
to forfeit his ill-gotten gain. Setting aside complications that
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. At the
same time, all of this can be accomplished ordinarily through an
ordinary criminal proceeding, without resorting to a standard civil
forfeiture action.

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.

The facilitation doctrine, however, is quite another matter,
for 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 cattle
on my ranch, "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 the property "facilitated" my crime.

Today, countless forfeitures take place under the facilitation
doctrine. The property is personified. It is then said to
"facilitate" 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



361



forfeitures. Ships can be forfeited over the discovery of a
mariji.ana "roach." Apartment buildings, hotels, cars, and second
mortgages can be forfeited over illegal assignations.

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- -offer anything but occasional relief. 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, ideally, in a rational system
of wrongs to be remedied.

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



362



ENGLISH & SMITH

FACSIMILE ATTORNEYS A LAW TtLEI'HON'E

:03i 54S-Sde has proposed
in H.R. 1916. NACDL remains unconvinced that there should be a "poll tax" for justice in
America. We remain convinced that Chairman Hyde's proposed abolition of this anomalous,
anti-democratic, "justice ia.\" is a critically important reform to the law of asset forfeiture As
vou know, the courts have ample powers (e.g.. Rule 1 1), and every incentive - given their
notorious case (over)loads - to boot out frivolous claims, be they filed by the poor or the rich.

I have no objection to a provision requiring the claimant to state "the nature and extent
of his ownership interest" in the property . However, for the reasons I previously explained, we
stronelv object to a requirement that the claimant also state "how and when it was acquired."
The how and uhen requirement would be onerous in many cases and we see no justification for
it. The claimant ma\ , of course, be required to explain how and when he acquired the property
once litigation commences in the district court. The government frequently files form
interrosatories together with the complaint in order to determine whether the claimant has
standing to contest the forfeiture. We see no reason why a claimant should have to explain how
and when he acquired each piece of property the government has seized at a \cry early stage in
the proceeding, when he often hasn't even obtained the assistance of counsel yet. There are
many cases where the government seizes literally everything a claimant owns, including many
items of relatively small Nalue. It would be exiraordinarily difficult, if not impossible, for the
claimant to quickly and accurately provide details as to how and when he acquired each piece
of property.

In your lener you provide an example of the kind of information a claimant would be
required to tell the government under the provision. However, you do not give an> information
as to "how and when" the h>pothetical owner of the money acquired it. The mere statement that
the money represents the operating capital of his business does not tell us how and when he
acquired it.



Section 105
Preservation of Arrested Real Property

We have no objection to a statutory' provision which merely codifies the Supreme Court's
decision in United States v. James Daniel Good Real Propert\' . 510 U.S. 43 (1993). However,
we believe that the DOJ proposal does more than that. The videotaping of the interior of an
occupied home is a very significant invasion of the privacy interests of the homeowner. As
such, it interferes with the owner's use and enjoyment of the property. After all, one reason
people choose to live in private dwellings is to protect the privacy of their possessions and
lifestyle. Videotaping the interior of a home and all of its contents is the functional equivalent
of a search. We believe that either a search warrant or an order issued after an adversary hearing



367



pursuant to Good would be required in order to authorize such videotaping. Apart from the
constitutional issue involved, we also do not understand wh> law enforcement feels there is such
a need to videotape. Normally, the government does not seek forfeiture of the homeowner's
personal property contained within the home. In those cases, we see no justification for
videotaping the entire contents of the home. In some cases, the government ma\ have an interest
in videotaping valuable fixtures such as an expensive chandelier hanging in the dining room.
Those concerns can be dealt with in a far less intrusive manner than videotaping the entire
contents of the house. Such videotaping will often merely be an excuse for rummaging through
the homeowner's possessions in search of incriminating evidence.



Section 107
Prejudgment Interest

We see no reason why the government should not have to disgorge any benefit it receives
from using the claimant's money when it loses the case. We would fully codify the decision in
United States v. S277.000.00 U.S. Currency . 69 F.3d 1491 (9th Cir. 1995). That decision does
not expose the government to "unlimited liability based on uncertain calculations of what 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 34 of 37)