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Confiscation Crazy

By George Wang

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.

It is no coincidence that police focus on the wealthy, instead of the drug houses which are the real centers of drug trafficking. The police will not fool around with dangerous crack houses if they can seize an innocuous millionaire's home.

The case of Donald Scott illustrates this point well. His residence was so valuable that federal agents, state officials, local police, and even the National Park Service rangers all wanted a piece of the action. They established probable cause by having an agent fly over Scott's estate; supposedly the agent spotted some marijuana plants.

It is difficult to prove that the raid was solely the product of greed, but the fact that the agents had obtained appraisals of the property before the incident may shed some light on the issue.

Attempts at seizing property usually do not end in deaths. However, the weak probable cause standard allows for numerous other injustices. For example, agents have seized homes because of crimes committed by previous owners. Because the government fanatically seizes every property that qualifies regardless of the owner's innocence, families are being punished for acts they haven't committed.

People from all sides of the political spectrum agree that our country's civil forfeiture laws are in dire need of reform.

The liberal ACLU supports conservative Representative Henry Hyde's bill, which places stronger, albeit still inadequate, restrictions on police power. Hopefully, this coalition will succeed in passing the Hyde legislation.

Americans often take their rights for granted. The government's current seizure laws point out the danger of this complacency. It's time to stop government abuses and reclaim the fundamental tenets of our justice system.

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