President's Drug Law Commission Recommends State Forfeiture "Reforms" Ä Judy Osburn, F.E.A.R. Chronicles, Vol. 2 No. 2 (July 1994) The President's Commission on Model State Drug Laws presented its five-volume report containing 44 model statutes and recommendations addressing asset forfeiture, alcohol and tobacco, drug treatment through the criminal justice system and state insurance plans, "drug-free schools and school children," and "expedited conviction of drug traffickers," among other issues. Attorney General Janet Reno and Dr. Lee P. Brown, Director of the Office of National Drug Control Policy spoke at the December 13, 1993, presentation ceremony. Congress funded the bipartisan 23 member commission, based in the Executive Office of the President. The Commissioners included: "state legislators, treatment service providers, state attorneys general, district attorneys, prevention specialists, a state judge, attorneys, a housing specialist, and other experts." Their recommendations were distributed to the governors and legislatures of each state and are being disseminated to law enforcement, education, treatment and prevention professionals. According to the Executive Summary, the model Commission Forfeiture Reform Act (CFRA) would "present a balanced approach: preserving civil forfeiture's effectiveness while eliminating the risk of unfair forfeitures." Several of the proposals became unconstitutional and/or irrelevant as applied to real estate with the advent of the Supreme Court decision in United States v. James Daniel Good Real Property. (See article beginning on page 5.) Such obsolete proposals would: prohibit eviction from seized homes without a prior hearing "except in emergencies;" allow states to contract with mortgage companies and other interest holders to maintain the property pending trial; and "provide for interim sales of seized property and other mechanisms to expeditiously release legitimate property interests." The latter provision would be especially terrifying to a family fighting to keep their home or other property that has far more personal value than monetary worth. Ironically, on the same day the Commission ceremoniously presented its proposals the Supreme Court released its decision prohibiting seizure of real estate before an opportunity for trial, thereby effectively nullifying all the above proposals. The model statute would exclude forfeiture of real estate for personal use amounts of drugs. However, this reform falls far short of conforming to the constitutional prohibition of excessive punishment. Even the dissenting justices in Austin v. United States expressed that they would be reluctant to forfeit a business or home based upon a single illegal drug sale. The Commission's model provision is only a small improvement over present federal law that authorizes forfeiture of real estate used to facilitate a felony drug crime. According to the Executive Summary, the model act "requires state, owner and interest holder to meet the same burden of proofÄpreponderance of the evidence." Mere probable cause is sufficient grounds to forfeit property under present federal law, but in cases where a property owner is able to bring his case to trial the preponderance of the evidence (i.e., more-likely-than-not) standard of proof governs the proceeding. Presently, the defendant must tip the scale slightly against the government. Requiring the government to prove its case, even by this low standard, would produce one practical advantage: government would no longer be able to rely on hearsay evidence at trial. However, in light of recent Supreme Court decisions, it is clear that proof by preponderance of the evidence is a constitutionally insufficient standard when the government inflicts punishment for an offense.1 The commission also recommends that states allow forfeiture of "substitute assets," that were neither involved in illegal activity nor obtained through illegal proceeds, if the original forfeitable asset is destroyed, removed from the state or "is otherwise unavailable." Present federal criminal forfeiture laws contain a similar provision. The "substitute asset" amendment to federal law was rejected by the House Committee because it is "unnecessary" and "dangerously close to constitutional problems under the Eighth Amendment and the constitution's negative reference to 'forfeiture of estate' in Article III, section 3, clause 2."2 Nonetheless, the amendment was introduced again two years later. The House passed it without further discussion and it is now part of federal criminal law. "Substitute assets" can only be forfeited through criminal (in personam) proceedings. The property itself is accused of crime in a civil (in rem) forfeiture, and "substitute assets" are by definition innocent of wrongdoing. In addition to forfeiting substitute assets, the model state law would also allow states to "obtain a personal forfeiture judgement against a drug dealer which can be satisfies from in-state or out-of-state assets." No provisions protecting innocent owners' interests are mentioned in the Executive Summary. Not only does the model act permit forfeiture with no clear proof of criminal activity, there appears to be nothing that would establish property owners' right to a trial by jury with assistance of counsel, no requirement of proportionality or criminal conviction, nothing to hold seizing agencies accountable for negligent destruction of property, nor does it address forfeiture's built in financial incentives that pervert law enforcement priorities. The Commission's asset forfeiture recommendations comprise a model for further government banditry. 1. See F.E.A.R. Chronicles, Vol. 2 No. 1, "Supreme Court Rules Forfeiture Is Punishment Limited by the Constitution;" and U.S. v. James Daniel Good Property, at page 5 in this issue. 2. See House Report 98-845, at page 10 (1984).