Confiscation Crazy

On October 2, 1992, Donald Scott woke up to find that armed men and women were storming his house. Scott got out of bed, drew a weapon in defense, and confronted the intruders. He was shot and killed.

Is the incident another sign of rising violence in our society? Not at all. The intruders were police agents, operating on the suspicion that Scott's house contained drugs. The officers proceeded to search Scott's residence for narcotics. They found none. This fiasco was the direct result of ill-considered legislation

In 1984, Congress passed a law granting both federal agencies and local police enormous power of seizures, and by doing so invited disaster. The law has given police the right and the incentive to use the slightest pretenses to confiscate property. Though few cases end as tragically as Scott's, the law constantly allows infringements of the rights of thousands of citizens.

Under current statutes, law-enforcement officials can seize the belongings of ordinary citizens who have not been convicted of any crimes. Homes, cars, cash, businesses; you name it, the government can take it.

The technical term for all of this--civil forfeiture--gives the process a legitimate ring. In reality, it simply means that the government can seize property if it can demonstrate probable cause that the property is linked to a drug transaction. Forfeiture laws allow, and even encourage, encroachment on property rights by law-enforcement officials.


Probable cause, which allows hearsay and circumstantial evidence, grants law-enforcement agencies broad latitude in accumulating evidence. This latitude is reasonable for obtaining a search warrant, but not for confiscating property.

Once law-enforcement agents show probable cause, the accused must then prove beyond a preponderance of the evidence--a much stricter standard than that applied to the government--that his belongings were not used in a drug-related transaction. In essence, the defendant must prove a negative. This is a difficult and sometimes impossible task.

In passing these laws Congress seems not to have accepted a basic principle of American justice: We are all innocent until proven guilty. Because the accused is presumed guilty, the confiscated property remains in the hands of the government. If the defendant fails to comply with all legalities, or cannot pay the requisite fees, the government keeps the property.

Even if the accused pays all the legal fees and wins the property back, the government then charges storage costs. And the government has no liability for damages incurred during government storage."

The high cost of fighting the charges prevents many whose property is confiscated from defending themselves. Many innocent people can afford neither the fee necessary to regain control of the property nor the expensive litigation costs. Victims of wrongful forfeitures have to pay for all legal expenses; the government refuses to provide counsel to indigents.

The case of Willie Jones, a Black Business owner, shows the fundamental injustice of this arrangement. Jones was carrying large sums of cash to purchase supplies and airline tickets. Police thought that this behavior was suspicious, so they searched him--and found drugstained bills.

This was enough to establish probable cause, even though studies have shown that there are traces of drugs on 97 percent of U.S. currency. In fact, drugstains have even been found on Janet Reno's money. The police seized Jones' money anyway.

Jones is still unable to pay the $960 he needs to challenge the forfeiture.

Congress passed forfeiture laws in the hopes of reducing drug trafficking, but law-enforcement agents seem to be more interested in making money. Federal agencies and local police keep a substantial portion of the forfeited cash and revenues obtained from the sale of confiscated properties; this creates a strong incentive to apply forfeiture laws loosely.

Many local police departments and federal agencies have come to depend on seizures as a source of revenue. In 1990, the Justice Department warned of a shortfall and instructed U.S. attorneys to "[make every effort] to increase forfeiture income..." The practice of trying to balance department budgets through asset forfeitures is a dangerous one.