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 [Editors Note: This is a law that should be repealed immediately!]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."