Friday, November 21, 2014

The Need to Seize the Abuse: Civil Asset Forfeitures and the Efforts at Reform

At a time when the public is becoming more aware and informed of law enforcement related abuse, some have begun to take note of one of the most common, and most profitable, forms of abuse: civil asset forfeitures.

In the aftermath of the September 11 attacks, the federal government encouraged state and local police departments to play a more active role in searching for both suspicious people and suspicious activity. This encouragement, reinforced with millions of dollars on training and education, has resulted in an environment in which police officers routinely confiscate money and property from individuals who have not been, nor are, accused of a crime. The government need only show by preponderance of the evidence that the property was being used for illegal purposes.

Alarmingly, in many states, law enforcement is able to take the seized property and sell it for a substantial profit. Cash seizures can occur on the federal level through equitable sharing, a Department of Justice civil forfeiture program created nearly three decades ago. Since September 11, there have been nearly 62,000 cash seizures totaling more than $2.5 billion. Only one sixth of these seizures were legally challenged, although in over 40% of the cases where there was a challenge, the government agreed to return the money.

On the federal level, the IRS has also participated in the seizure of property. Earlier this year, the IRS seized control of a restaurant owner’s assets without ever charging her with a crime, because they believed that she was structuring her deposits in order to avoid a reporting requirement. Disturbingly enough, bank accounts and cash are not the only things that the government can seize through civil asset forfeiture. Mere suspicion can result in the seizure of an individual’s automobiles and even residential property.

There are some who defend civil asset forfeitures, primarily on the ground that it aids the public because law enforcement officers are not only being taught how to identify suspicious behavior, but also the taking of money from a criminal constitutes the most effective type of deterrent. But it remains to be seen how these seizures assist in effective police work, particularly when nothing beyond mere suspicion is required for the initial seizure.
Of course, in addition to banning the use of “cruel and unusual punishments,” the Eighth Amendment of the Constitution also prohibits “excessive fines.”

In United States v. 434 Main St. Tewksbury, Massachusetts (D. Mass. 2012), the Department of Justice, with the assistance of local law enforcement officials, seized the property of Russell H. Caswell, a Massachusetts motel owner, contending that the motel rooms were being used to “facilitate” a crime. Critically, the government does not accuse the Caswells themselves of participating in the crime. Perhaps even more importantly, the government never asserts that the Caswells knew, or were even supposed to know, of the activity going on in their rooms at all times. The government’s primary basis supporting the validity of the forfeiture is that there have been five drug investigations at the hotel each year since 1994. On January 24, 2013, the court dismissed the forfeiture action, ruling that the government engaged in “gross exaggeration” of the evidence and did not have the legal right to seize the property. Additionally, the U.S. Attorney’s office announced that it would not appeal the court’s decision.

Encouragingly, both state governments and Congress have begun to consider ways in which this abuse on civil liberties can be reigned in, or outright eliminated. For example, Minnesota’s state legislature passed a bill in May that prevented law enforcement officers from keeping seized property or money if an individual is not convicted of a crime.  In Wyoming, the state legislature intends to sponsor a bill that similarly permitted law enforcement officials to seize and keep an individual’s assets without that individual ever being charged with a crime.  The bill would require the state to place a legal notice in a newspaper of general circulation detailing the forfeited property and notifying the relevant parties that they have sixty days to contest the seizure. If convicted, an individual can contest the forfeiture and have a hearing, in some cases before a jury.

Reform efforts have not been limited to state governments. Earlier this year, Senator Rand Paul introduced the Fifth Amendment Restoration Act that, among other things, would entirely eliminate equitable sharing. Similarly, Congressman Tim Walberg brought forward the Civil Asset Forfeiture Reform Act, which would transform the burden of proof in civil asset forfeiture proceedings, requiring governments to establish clear and convincing evidence that the property was being used for illegal purposes.

While many of the possible efforts at reform have been encouraging, the most encouraging reform would be transferring the burden of proof in civil asset forfeiture cases from a preponderance of the evidence to a clear and convincing standard. Furthermore, ending the practice of equitable sharing would help remove the incentive of local and federal law enforcement agencies to engage in these practices, particularly when no evidence suggests that the relevant individual has committed a crime. Removing the incentive of pursuing these civil asset forfeitures may lessen the need for prosecutors to try these cases in court. With more and more attention being paid to this disturbing conduct, defense attorneys may feel more encouraged to bring suit against the government, particularly if it lends more of a spotlight to these practices.  At a time when many individuals do not have the resources to bring suit against the government, reform may be the only way that individuals can hold onto their belongings. 

Omeed Assefi
Articles Editor, Criminal Law Practitioner

Photo by Province of British Columbia via Flickr

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