IP: Asset forfeitures - piracy (fwd)

[Dave Farber <farber@cis.upenn.edu>]

>Date: Fri, 23 Jul 1999 14:22:16 +0300 (EEST)
>From: Zombie Cow <waste@zor.hut.fi>
>To: cypherpunks@toad.com
>
>
>---------- Forwarded message ----------
>Date: Fri, 23 Jul 1999 00:27:07 -0600
>From: JIM MEISINGER <mejim@oneimage.com>
>To: Janet Lee <mejim@oneimage.com>
>Subject: Asset forfeitures - piracy
>
>Are asset forfeitures penalty -- or piracy?
>By Frank J. Murray
>THE WASHINGTON TIMES
>
>[Editors Note: This is a law that should be repealed immediately!]
>
>
>Cops and prosecutors call it punishing the crooks when and where
>they'll feel it most.
>
>Lots of other people, honest and law-abiding, call it police piracy.
>
>What they're talking about is assets forfeiture, and the practice has
>left so many horror stories in its wake that dedicated anti-crime
>lawmakers, Democrats and Republicans, liberals and
>conservatives, are joining a growing movement to clean up the
>official abuses.
>
>Most forfeitures -- by which the government seizes property that
>officers merely suspect was used in a crime or bought with the loot
>--never reach the point of criminal charges. Up to 80 percent never
>go to court.
>
>Seized properties range from a doctor's savings to a private prison
>in Louisiana with all 400 inmates, a Houston hotel, a 4,346-acre
>Florida ranch, a church's Spanish-language radio station and
>Hollywood Madam Heidi Fleiss' $550,000 Beverly Hills mansion.
>
>Rep. Henry J. Hyde of Illinois, chairman of the House Judiciary
>Committee, a Republican and a conservative, cited these and other
>abuses in his testimony to a Senate Judiciary subcommittee on
>criminal justice and oversight in behalf of modifying a 1974 law.
>
>Mr. Hyde told the senators it's difficult for him to accept that a law
>that permits and in fact encourages violations of the rights of
>innocent citizens could go unchallenged. He entreated the senators
>to accept the tough reform legislation he steered to overwhelming
>bipartisan acceptance in the House last month.
>
>The attentive subcommittee members agreed with Mr. Hyde's
>contention the law needs reforming. But they seemed to agree with
>Deputy Attorney General Eric H. Holder Jr. and other witnesses
>who testified yesterday that Mr. Hyde's reforms would cripple the
>cops.
>
>The law was designed as a weapon in the war on drugs to collect
>fancy cars, yachts, airplanes, houses and huge caches of cash. An
>owner trying to get back property must prove his innocence
>instead of the government proving guilt, which to many Americans
>seems to turn the constitutional guarantee of due process on its
>head. Fewer than 2,500 of the 30,000 property seizures each year
>are even challenged in court.
>
>When the more common civil seizures are challenged, courts
>routinely acknowledge that constitutional "due process" clauses
>forbid inordinate delay and demand advance notice and a hearing,
>except when immediate or "exigent" circumstances apply. This
>usually means taking on faith the word of the prosecutors.
>
>A few such seizures have been overturned on "due process"
>grounds, but, more commonly, appeals courts accept a
>government claim of emergency or rule prosecutors' omissions
>aren't serious enough to require returning seized property.
>
>On other constitutional grounds federal courts have ruled:
>
>Forfeiture is not "double jeopardy" because it is not
>
>"punishment." The Supreme Court said in a different
>
>case, however, that seizures of property out of
>
>proportion to the offense violate Eighth Amendment
>
>guarantees against "excessive fines [or] punishment."
>
>The Sixth Amendment right to counsel does not bar
>
>seizure of an attorney fee.
>
>The Fifth Amendment right to compensation for
>
>"takings" doesn't require paying interest when property
>
>wrongfully seized is returned after a long court fight.
>
>A search and seizure that violates the Fourth
>
>Amendment on criminal matters doesn't negate civil
>
>seizure of criminal profits.
>
>The Hyde legislation, passed overwhelmingly by the House, would
>drastically shift the balance by requiring return of property without
>the victim's having to post a bond, appoint lawyers for those who
>can't pay and place the burden of proof on the government.
>
>The Justice Department concedes it should accept the burden of
>proof if the law is rewritten, but the department doesn't want the
>law touched because it will make the job of Justice Department
>lawyers more difficult.
>
>Critics of the present system say it is rife with conflicts of interest,
>
>including millions of dollars in rewards for tipsters, and gives local
>and federal officials a motive to split property among themselves.
>
>The value of 24,903 seized assets now held by the federal
>government exceeds $1 billion, including $349 million in cash.
>State and local seizures often wind up in federal hands to be
>divvied up with local officials.
>
>The Kafka-like stories that impressed the House came from such
>unlikely people as Nashville gardener Willie Jones, a Malibu
>millionaire named Donald Scott, and Detroit housewife Tina
>Bennis:
>
>Mrs. Bennis lost title to her 1977 Pontiac, a $300
>
>clunker, seized in Detroit when her husband patronized a
>
>prostitute on his way home from work. Michigan law
>
>that condemns the location of such offenses as "public
>
>nuisances" was upheld by the Supreme Court.
>
>Mr. Scott was mistakenly shot to death in his California
>
>home by 30 state and federal agents during a futile
>
>search for marijuana plants in a raid that investigators
>
>later concluded was motivated by the goal of
>
>confiscating his ranch.
>
>Mr. Jones, 50, who has become the leading poster child
>
>for the anti-forfeiture cause, lost $9,600 to police at the
>
>Nashville airport after he paid cash for a round-trip
>
>ticket to Houston and found himself "profiled." He
>
>testified he carried the suspicious cash because he could
>
>make better deals for his landscaping business with cash
>
>payments. Police dogs sniffed traces of cocaine on the
>
>money. No surprise, says one police expert, because
>
>traces of cocaine are on 97 percent of all U.S. currency.
>
>Federal Judge Thomas Wiseman denounced the Jones episode as
>"a forfeiture proceeding started in bad faith with wild allegations
>based on the hope that something would turn up to justify the
>suit." He ordered Mr. Jones' money returned.
>
>Roger Pilon, vice president for legal affairs and chief opponent of
>forfeiture at the libertarian Cato Institute, agrees. "You can't use
>the thumbscrew and the rack, no matter how worthy your aims
>are," he says. "Prosecutors have this simple-minded view that
>you're either guilty or not guilty."
>
>Rep. Asa Hutchinson, Arkansas Republican, a Hyde ally on
>impeachment, is a former U.S. district attorney in Arkansas. He
>has put away a lot of bad guys. He led the fight to make the Hyde
>bill less restrictive of the behavior of cops and prosecutors, but Mr.
>Hyde's side won by a vote of 375 to 48.
>
>"I believe it tilts too far against law enforcement and takes away
>one of their most valuable tools in fighting drug traffic," Mr.
>Hutchinson says, professing anguish over opposing Mr. Hyde.
>
>"This was such a gut issue for him it really made it difficult for
>anyone to go against him. It made it difficult for me. But it's a gut
>issue for me, too. I am for the reform, it's just you've got to have
>balance. You don't want to hurt our legitimate crime-fighting
>efforts in the process."
>
>Mr. Hyde's co-sponsors are an unusual array of bedfellows: the
>committee's ranking Democrat, Rep. John Conyers Jr. of
>Michigan; Rep. Barney Frank, Democrat of Massachusetts; and
>Rep. Bob Barr of Georgia, a Republican and a former U.S.
>attorney. On the other side are New York Mayor Rudolph W.
>Giuliani, a Republican, for seizure of drunk drivers' cars, and San
>Francisco Mayor Willie Brown, a Democrat, who backs taking the
>cars of those arrested -- though not necessarily convicted -- for
>soliciting drugs or prostitutes.
>
>Many incidents cited by Mr. Hyde, including the Nashville
>gardener's ordeal, are credited to a 10-month investigation by
>Scripps Howard News Service. Since then, the Orlando Sentinel
>won a Pulitzer Prize for exposing a Daytona Beach sheriff who
>policed Interstate 95 so aggressively that Florida rewrote its
>forfeiture law.
>
>The Arkansas Democrat-Gazette found that authorities in Ouachita
>County in southern Arkansas had offered drug runners freedom in
>exchange for land, cash or fancy cars worth thousands of dollars.
>In another Arkansas county, the sheriff distributed seized cars to
>his deputies and their families. Similar scandals sent Arkansas
>prosecutor Dan Harmon to jail for 11 years for extortion and set
>off a federal investigation. Somerset County, N.J., prosecutor
>Nicholas L. Bissell Jr. killed himself in 1997 after conviction of
>corruption for spending $1.5 million in seized money.
>
>The owners of a Red Carpet Motel in Houston pleaded with police
>for months to deal aggressively with the drug traffic in and around
>the motel. Federal authorities told the motel to raise its room rates
>to discourage the activity, and when the motel owners declined,
>the feds seized the motel.
>
>In ordering the government to return to Sam and Frank Lombardo
>$506,641 found hidden at their Congress Pizzeria in Chicago, the
>7th U.S. Circuit Court of Appeals said, with judicial
>understatement, "the government's conduct in forfeiture cases
>leaves much to be desired." The three-judge panel said:
>"Government may not seize money, even half a million dollars,
>based on its bare assumption that most people do not have huge
>sums of money lying about, and if they do, they must be involved
>in narcotics trafficking or some other sinister activity."
>
>Prosecutors and members of Congress agree that Mr. Hyde's long
>campaign to rein in forfeiture programs was helped this year by
>"increasing public clamor" over scandals involving seized assets
>and deal-making with accused criminals who surrender property to
>escape prosecution.
>
>"It's wrong to deal away a prosecution in exchange for a
>forfeiture," a Justice Department official says. Such scandals
>undermine public opinion for a key prosecutorial weapon, a point
>seconded by Rep. Ed Bryant, Tennessee Republican and a former
>U.S. attorney who voted against Mr. Hyde's bill. "A lot of the bad
>rap are cases that come from the state forfeiture laws," Mr. Bryant
>says in an interview, citing federal prosecutors' objections to the
>bill.
>
>"We're all kind of torn between the property-rights issue, and the
>other side of the coin, which is the law-enforcement need."
>
>Drugs and airplanes mix so often that authorities often assume the
>worst, as they did with Las Vegas charter pilot Billy Munnerlyn,
>whose plane was confiscated when he landed at Ontario, Calif.,
>with a paying passenger who boarded at Little Rock, Ark. The
>passenger, one Albert Wright, turned out to be a convicted cocaine
>dealer with $2.7 million in his carry-on luggage. DEA agents
>seized the money, the men and the airplane.
>
>No one ever was charged, and officials concluded that Mr.
>Munnerlyn knew nothing about the contraband cash. Several years
>later, the House Judiciary Committee noted, Mr. Munnerlyn is
>bankrupt and working as a truck driver. Critics of forfeiture abuse
>cite the Munnerlyn case as zealotry run amok, and note that
>government lawyers have never seized a Delta Air Lines Boeing
>747 or a United Air Lines Boeing 777, even though drug dealers
>often use commercial airlines for their travel.
>
>In Lancaster, Pa., the Rev. Roberto Figueroa saw his Spanish-
>language broadcast station "Radio Vida" hauled away from a
>Pentecostal church because the station's FM signal, limited by law
>to 1,000 feet, was heard 20 miles away.
>
>Such citations of abuse irritate police and prosecutors, who argue
>that these are isolated cases and Congress and state legislatures are
>being steamrollered to rescind a key weapon against the most
>elusive criminals.
>
>"I have never been so inundated . . . on any issue as much as in
>opposition to [this bill] than by those in the law-enforcement
>community," says Rep. John L. Mica, Florida Republican, who
>chairs a subcommittee on criminal justice.
>
>The Justice Department vigorously disputes the measure in a
>written policy statement, saying the bill "fails to address the most
>pressing needs of victims and law-enforcement."
>
>Setting a tougher standard of proof for the government will "give
>drug dealers more protection than bankers, doctors and defense
>contractors," the government statement says.
>
>Not so, says the Cato Institute's Mr. Pilon. "This [Hyde] bill will
>not prevent law enforcement from pursuing those forfeitures that
>are legitimate. What it will prevent is the forfeitures that should
>never take place in the first place, especially those seizures of
>property from innocent people simply because the property may or
>may not have been 'involved' in a crime."
>
>