Last Part: REFORMS|
by Andrew Schneider and Mary Pat Flaherty
The bottom line in forfeiture.....is the bottom line.
And that, say critics, is the crucial problem.
The billions of dollars that forfeiture brings in to law enforcement agencies is so blinding that it obscures the devastation it causes the innocent.
A 10-month study by THE PITTSBURGH PRESS found numerous examples of innocent travelers being detained, searched and stripped of cash. Of small-time offenders who grew a little marijuana for their own use and lost their homes because of it. Of people who had to hire attorneys and fight the government for years to get back what was rightfully theirs.
Attorney Harvey Silverglate of Boston says: "There is a game being played with forfeiture. They go after the drug kingpins first, then when everyone stops looking, they turn the law and its infringement of constitutional protections against the average person."
Many people who have watched seizure and forfeitures burgeon as a law- enforcement tool say changes must be made quickly if the traditional American system of justice, based on the constitutional rights of its citizenry, is to remain intact.
NO CRIME, NO PENALTY
When Nashville defense attorney E.E. "Bo" Edwards cites remedies, he lists first the need to make forfeiture possible only after a criminal conviction. Edwards heads a newly created forfeiture task force for the national Association of Criminal Defense Lawyers.
As the forfeiture law now stands, property owners who never were charged with a crime or were charged and cleared still can lose their assets in a forfeiture proceeding.
Under forfeiture, the government must only show that an item was used in a crime or bought with crime-generated money. The government doesn't have to prove the property owner is the criminal.
Changing the law to allow forfeiture only after a property owner's criminal conviction would ensure the government proves its cases beyond a reasonable doubt, Edwards says.
The legal fiction "of property violating the law, that 'property' can do wrong, is ludicrous and offensive to the American scheme of government," says Edwards. "Arresting a plane, for instance, when there is no proof that the pilot broke any laws is not only an abuse of our judicial system but a moronic game."
The narrow legal view holds that because forfeiture usually is a civil case, it involves monetary penalties and not punishment, like jail, that takes away personal freedoms.
Taking that narrow view, it seems unnecessary to include the due process protections of criminal court - such as the presumption of innocence - because the potential penalties never would be as severe as those in a criminal case.
But prosecutors and appeals courts who say forfeiture is not a punishment are "denying reality," says Thomas Smith, head of the American Bar Association's criminal justice section. "The law was enacted to punish, and if you ask anyone who has lost a house or a bank account to it, they will tell you it is punishment."
Allowing forfeiture only in the event of a conviction also would eliminate the risk owners are exposed to when they face a criminal charge against them in one courtroom and the civil forfeiture case in another.
Under criminal and civil proceedings, the defendant has a constitutional guarantee that he needn't testify to anything that may incriminate him.
But because a person may face two trials on the same issues, it raises the possibility that a civil forfeiture case could be brought in the hope that information divulged there could later shore up an otherwise weak criminal case.
The gusto for seizure is weakening the traditional protections that surround police work. The definition of "reasonable search and seizure," for example, has been stretched to include tactics that some believe aren't reasonable at all.
The U.S. Supreme Court this June said it is legal for police - wearing full drug-raid gear and with guns showing - to board buses about to depart a station and ask random passengers if they will consent to a search.
In his dissent, Justice Thurgood Marshall branded the tactic coercive and in violation of the Fourth Amendment. "It is exactly because this 'choice' is no 'choice' at all that police engage in this technique," he wrote.
Training films for state police or drug agents in Arizona, Michigan, Massachusetts, Texas, Louisiana, New Mexico and Indiana show, that drug searches involve much more than a visual scan or quick hand search.
Officers in the films obtained by The Pittsburgh Press didn't just look. They opened suitcases in car trunks and pulled out back seats, side door panels and roof linings. In several of the films, they went so far as to remove the gas tank. When they're done, they may or may not put the car back together. The owner's ability to collect damages will depend on the protections offered bay state law.
Grady McClendon had to fight in court for nearly a year to get back about $2,300 taken by police in Georgia following a highway search. His money was seized after police said they'd found cocaine in the car. Lab tests later showed it was bubble gum, but for 11 months police held McClendon's money without charging him with a crime.
During the search, McClendon says, "they made us stand four car lengths away. If I'd have known that, I wouldn't have said yes, because I couldn't see what they were doing in the dark. that isn't what I expected in a search."
NO ACCOUNTING FOR MONEY
The public is often left in the dark about how the proceeds of forfeiture are spent.
A Georgia legislator who this year drafted a law that added real estate to the items that can be taken in his state, also inserted a "windfall" provision for funds.
Under the provision, once forfeiture proceeds equal one-third of a police department's regular budget, any additional forfeiture money will spill over to the general treasury.
State Rep. Ralph Twiggs says he worried that once police began seizing real estate it would bloat their budgets, especially in Georgia's many small towns. "I was looking at all the money going into the federal program and I was thinking ahead. I don't want gold-plated revolvers showing up."
Gold-plated revolvers may be an extreme worry. But as it now stands, it is very hard to determine how police spend their money.
The money or goods returned to local police departments through the federal forfeiture system do not have to be publicly reported. Congress, in its "zeal to pass this feelgood (drug) law, " says Philadelphia City Council member Joan Specter, "apparently forgot to require an accounting of the money.
"The happy result for the police is that every year they get what can only be called drug slush funds," says Specter.
A department that receives forfeiture funds from cases it pursued through federal court or with the help of a federal agency is merely required to assure the U.S. attorney in writing that it will use the money for "law enforcement purposes." And even that minimal requirement wasn't met in Philadelphia.
The Philadelphia police didn't file the forms last year, says Specter, and used the money to cover the costs of air conditioning, car washes, emergency postage, office supplies and fringe benefits.
"That would be fine," she says, "except that the intent of the federal law was for the money to go back into the war on drugs."
It also meant Philadelphia city council "made budgetary decisions in the absence of complete information." At a time when $4 million in forfeiture funds was on hand or in the pipeline for Philadelphia, the city's chemical lab, where drugs are analyzed, had a backlog of more than 3,000 cases, she says. The lab bottleneck caused court delays and prolonged jailing of suspects before their trials began, Specter says.
The Philadelphia Police Department had estimated $1.2 million would double the lab's capacity, but the forfeiture funds were spent elsewhere. "Who should be setting the priorities?" she asks.
Sen. Arlen Specter of Pennsylvania, echoed his wife's view in an address to colleagues in the U.S. Senate. The absence of public accounting by the police who received federal shared funds, he says, "is a glaring oversight in the law, which ought to be corrected."
What legislators have done, says Chicago defense attorney Stephen Komie, "is emboldened prosecutors and police to create this slush fund of unappropriated money for which nobody votes a budget."
The federal forfeiture fund itself, which has taken in $1.5 billion in the last four years and expects to get another $500,000 this year, had its first standard audit only last year.
CIRCUMVENTING STATE LAW
The relationship between state and federal forfeiture systems is thorny in other respects. Washington, D.C. helps local law enforcement do end runs around state law.
The process is formally known as "adoption" - and U.S. Rep. William Hughes of New Jersey, who devised it, now says he made a mistake that he would like to undo.
In adoption, a U.S. attorney's office will take over prosecution of a case developed entirely by local police.
Theoretically, local law enforcement officials go to federal prosecutors because the federal government has more resources available to dissect complicated criminal enterprises and its jurisdiction reaches beyond state lines.
But more often, The Pittsburgh Press review of forfeiture found, the cases are passed along because local police find state laws too restrictive in what can be seized and how much money police can make.
If local departments choose to use the federal system, "then it seems to me it's entirely appropriate for us - so long as the resources are there and what not - to help in that process," says Associate Deputy Attorney General George Terwilliger III, the head of forfeiture for the Justice Department.
"But I don't know that we'd encourage it." But his department clearly does. The Justice Department's "Quick Reference to Federal Forfeiture Procedures" says on Page 203 that "adoptive" seizures are encouraged."
Hughes says including "adoption" in his legislation "was a mistake, " because it has become a way for police to game the forfeiture system.
When he introduced legislation that would have ended federal adoption, "it went nowhere, because law enforcement rallied and convinced everyone they needed those cuts of the pie."
Local police have started using the federal courts to do end-runs around state laws that earmark forfeiture money for the likes of schools instead of cops, or else guarantee police less money than they would get in federal court. There, the cut for local law enforcement can be as much as 80 percent of the value of forfeited items.
But it's not always money that propels police into federal court. It can also be differences over prosecution.
In Allegheny County, for instance, District Attorney Robert Colville will not pursue a forfeiture unless he first wins a criminal conviction against the property owner on a drug charge. Local police know that and avoid Colville's office - and go to federal court - when they aim to seize items from owners who aren't even charged with a crime, Colville says.
The departments argue their approach is legal, "but for me, legal isn't necessarily fair, " Colville says.
"It was never intended states would be able to use the federal process to avoid state policy. (Former Attorney General Dick) Thornburgh in particular" has supported adoption. "We want to clean that up," Hughes says, adding that "for the chief law enforcement office of the country to permit that process" of end-runs is "absolutely wrong."
Colville also believes the law's requirement that the money go for enforcement purposes restricts other, equally beneficial, uses. He would like to use more money for drug prevention and rehabilitation programs - uses that are strictly limited under federal sharing rules.
For example, federal guidelines permit forfeiture funds to be used to underwrite classroom drug education programs but only if they're presented by police in uniform, Colville says. He's like to send in health officials as well, to "get a different, equally important message across.
"I've come to the belief as a prosecutor that aggressive prosecution alone won't solve the problem. Guys I arrested 25 years ago when I was a policeman I still see coming back into the system. We need to address underlying social and economic problems." He has advocated using forfeiture money for the likes of summer jobs programs in drug-plagued neighborhoods, an idea rejected by the federal government.
Hughes, the New Jersey congressman, says he regrets earmarking all the federal forfeiture funds for law enforcement purposes, but cannot find support for changing the stipulation.
He originally thought police would need every dime they took in to pay for complicated investigations and assumed the forfeited goods would just cover the cost. Once the kitty grew, he figured then money could be set aside for areas such as drug treatment.
But the coffers grew much faster than expected and now it is proving hard to get police to give up the money. "We never dreamed we would be seizing $1 billion. Now the coffers are overflowing, but using the money in different ways is a touchy point at Justice."
Not even appeals from Louis Sullivan, secretary of Health and Human Services, compel a change. During an interview in Pittsburgh last week, Sullivan said he has asked that forfeiture funds go partially toward drug rehab but Justice turned him down repeatedly.
Justice recently turned down a proposal from Jackson Memorial Hospital, a cash-poor public hospital in Miami, to use $6 million seized during a south Florida money-laundering case to build a new trauma center.
The hospital is known in the industry as a "knife-and-gun-club" because of the volume of shootings and stabbings it handles. Police investigate nearly 85 percent of the hospital's cases.
In its proposal, Jackson suggested training medical staff to spot injuries that are the result of a crime, adding on-call photographers who would specialize in taking pictures of victims for use during trials and improving preservation of damaged clothing, bullets and other pieces of evidence.
The idea had bipartisan support from Miami's congressional delegation, Metro-Dade police and the U.S. attorney's office in Miami.
The memorandum from Justice rejecting the idea came from Terwilliger, who wrote that seized money must go to official use which "typically, has included activities such as the purchase of vehicles and equipment," including guns and radios.
But, says Hughes, "if the purpose is to deal with the drug problem effectively, Justice's reluctance to consider new ideas - particularly when it comes to treatment programs - seems to me to undercut their ultimate goal."
The Justice Department, which champions forfeiture as the law enforcement tool of the '90s, declines to talk about where the law is headed.
"I don't think it's appropriate in the context of a press interview to discuss potential policy and legislative issues," says Terwilliger.
But in not talking, the government "masks that details of the total emasculation of the Bill of Rights," says John Rion, a Columbus, Ohio lawyer.
"The taxpayer thinks this forfeiture stuff is wonderful, until he's the one who loses something. Then, he realizes that it's not just the criminal's rights that have been taken away, it's everybody's."