EDITORIAL Looks like punishment. . . Smells like punishment. . . FEELS like punishment: Why Civil Forfeiture Should Be Abolished -- by Brenda Grantland, Esq., F.E.A.R. Chronicles, Vol 1. No. 4, (September, 1992) The vast majority of the damage done to our Due Process and Property Rights by civil forfeiture statutes was achieved by placing a "civil" label on the statutes rather than treating them as the punishment they actually are. Numerous courts have upheld the constitutionality of the statutes, relying on the fiction that the person is not on trial but the property itself. This issue has not been completely disposed of, however, because the Supreme Court has never looked at whether these statutes are in fact criminal punishments in spite of their civil labels. Unlike criminal forfeiture statutes -- which require all the Due Process safeguards of a criminal trial, including proof beyond a reasonable doubt -- federal civil forfeiture statutes do not even require the minimal burden of proof ordinarily placed upon plaintiffs in civil trials -- "a preponderance of the evidence". Instead, at trial they only require the government to show "probable cause" to believe the property was involved in a crime, or proceeds of a crime, then the burden of proof shifts to the property owner, who has to prove by the preponderance of the evidence that the property is not subject to forfeiture. Under this standard, innocent owners can lose valuable real estate, for example, because a stranger plants marijuana in some remote corner of it, unbeknownst to the owner. With the burden of proof shifting to the property owner, he/she is faced with the dilemma of having to prove a negative. How do you prove you didn't know marijuana was growing on your property, when you have the burden of proof? If an informant with an extensive criminal record, who is promised by the DEA that he would receive 25% of the value of any property forfeited as a result of his testimony (and therefore has an obvious reason to lie) testifies that the owner knew the marijuana was growing there, the property owner is sunk. The informant could even be the person who planted the marijuana. Clearly, our American principles of justice require more proof before depriving citizens of their property. The burden of proof should always be on the government, and it should be a higher burden of proof than the civil standard of a preponderance of the evidence. It is absurd that a major drug trafficker being prosecuted under criminal forfeiture statutes, such as RICO (18 U.S.C. Sec. 1963), or the Continuing Criminal Enterprise statute (21 U.S.C. Sec. 848) -- both statutes designed to attack organized crime -- has far greater due process safeguards governing the forfeiture of his/her property than an innocent parent whose child used the family car to transport a small amount of drugs, allowing it to be seized under 21 U.S.C. Sec. 881. But that's the way the current federal forfeiture laws are written. We believe the burden of proof should be on the government, and that they should have to prove the owner's guilt -- beyond a reasonable doubt -- before forfeiting property. To go a step further, we believe civil forfeiture should be abolished, and all forfeitures treated as criminal forfeitures -- because forfeiture is in fact criminal punishment, not a civil remedy. Initially, the Justice Department justified lowering the burden of proof in civil forfeitures by relying on the "legal fiction" that it is the property, not the property owner, that is on trial, and that property does not have rights. However, this premise ignores the fact that people have property rights. It also assumes that the forfeiture is a civil penalty, rather than a criminal punishment. However, under constitutional principles, the determination of whether a penalty is civil or criminal cannot rely on a legal fiction. Instead, it depends on whether the statute is punitive or remedial, which requires analysis of certain factors: [T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. . . . Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. . . . Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. . . . In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." United States v. Ward, 448 U.S. 242, 248-49 (1980), quoting Flemming v. Nestor, 363 U.S. 603 (1960). Forfeiture is sufficiently punitive in purpose and effect as to negate any "civil" label. Although certain forfeiture statutes have been labelled "civil forfeitures," that label alone is not enough to override the serious punitive effect of forfeiture, especially when it comes to forfeiture of one's residence, business, or any significant portion of one's worldly possessions. In U.S. v. Ward, the Supreme Court applied the test in Kennedy v. Mendoza-Martinez, 372, U.S. 144, 168-69 (1963), which applied the following factors to determine whether a particular penalty was so punitive, either in purpose or effect, as to override a legislative intent to enact a civil penalty: [w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment - retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. (1) Punitive purpose Clearly the Justice Department in proposing and lobbying for these laws, and Congress in enacting them, had a punitive purpose in mind. The laws were part of an omnibus crime bill. They were nestled in with mandatory minimum sentences and other periods of incarceration as punishment for the same predicate offenses that allowed third parties' property to be forfeited. Furthermore, forfeiture has continually been widely touted by the Justice Department and law enforcement in general, as "the greatest single weapon in the War Against Drugs." Another favorite catch phrase is that forfeiture "hits drug dealers where it hurts - - in the pocket books." A punitive intent is clearly manifest in these catch-phrases, which are widely used to influence the public to support the laws as a deterrent to crime. Clearly the law enforcement propagandists would have the public believe that the victims of these laws are all drug dealers, a premise totally belied by the extraordinary reach of these laws and the well-documented willingness of law enforcement to ensnare totally innocent third parties using their over-broad powers. (2) Punitive effect Most people, even of modest means, who have worked hard and saved all their lives to buy a home and a car or two, to amass some savings and investments, or perhaps own a business -- when presented with the choice of whether they would rather go to jail for a year or lose most of what they own, would choose going to jail. At least then, when they get out they have something to come home to, and their family wouldn't be reduced to bankruptcy or even homelessness in the meantime. (3) "whether the sanction involves an affirmative disability or restraint" This test turns on whether the penalty takes away a right or entitlement which the owner already has -- that is, something beyond merely restraining the person from obtaining something he currently does not have. Certainly taking away from someone his personal property or real estate is an affirmative disability. (4) whether it has historically been regarded as punishment Although in rem forfeitures have been regarded as civil in some senses, the U.S. Supreme Court has always recognized that they are not the normal garden variety of civil case, and that they are quasi-criminal at the very least. In United States v. U.S. Coin & Currency, 401 U.S. 715, 718 (1971), the U.S. Supreme Court went so far as to say: From the relevant constitutional standpoint there is no difference between a man who "forfeits" $8,674 because he has used the money in illegal gambling activities and a man who pays a "criminal fine" of $8,674 as a result of the same course of conduct. In both instances, money liability is predicated upon a finding of the owner's wrongful conduct. When a forfeiture involves a property owner's sole residence or business, or approaches one's entire estate, it would be hard to not consider that punishment. Historically, it resembles the "forfeiture of estate," a species of criminal forfeiture banned by the early Colonists, and which, unquestionably was considered punishment. Under English common law, the convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all his property, real and personal, to the Crown. In fact, the term "felony" was defined under English law as "an offense which occasions a total forfeiture of either lands or goods or both." In addition, the convicted traitor or felon's "blood was corrupted" so that nothing could pass by inheritance through his line. Smith, Prosecution and Defense of Forfeiture Cases, Para. 3.01, p. 3-3 (1986 ed.). (5) whether it comes into play only on a finding of scienter Scienter is a Latin term for "guilty knowledge." Under all federal forfeiture statutes, some degree of guilty knowledge is required -- this is inherent in the innocent owner defense. (6) whether its operation will promote the traditional aims of punishment - retribution and deterrence The seizure and forfeiture of a person's house certainly sends a stern message to the community that participating in drug offenses will be met with stiff punishment. And for many criminal defendants, the loss of a residence they have spent years paying for is more serious punishment than going to jail. However, punishment is not a legitimate goal of a civil penalty. Bell v. Wolfish, 441 U.S. 520, 539 n. 20 (1979). Punishment is supposed to be incurred, under our Constitution, only after a conviction with all the Due Process safeguards afforded to criminal defendants. (7) whether the behavior to which it applies is already a crime The 1984 amendments to the federal forfeiture laws created civil forfeiture and criminal forfeiture statutes encompassing the exact same behavior, and made them interchangeable at the whim of the prosecutor. (See 21 U.S.C. Sec. 881, allowing "civil forfeitures", and 21 U.S.C. Sec. 853, authorizing "criminal forfeitures" for the same drug offenses.) The same conduct that gives rise to forfeiture is punishable by incarceration, including mandatory minimum sentences, in other sections of the same statute. (8) whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned In order to be treated as a civil penalty, forfeiture must bear a reasonable relationship to the fostering of a "remedial" goal. Typically, the stated remedial goal of civil forfeiture is to remove the means of committing further offenses. The government's regulatory objective in using forfeitures is to prevent criminals from using property to commit a criminal offense. The government achieves this objective in a forfeiture proceeding by seizing and condemning property that criminals used to perpetrate their crime. Note, "Due Process Implications of Shifting The Burden of Proof In Forfeiture Proceedings Arising Out Of Illegal Drug Transactions," 1984 Duke L. J. 822, 831 (1984). Forfeiting a homeowner's residence and putting a family on the street is not rationally related to the stated goal of removing the means of committing further offenses. A person has to stay somewhere, whether it is in his own home that he is working to pay for, or in some homeless shelter on the public dole. Either way, the person can as easily possess or store drugs either place. Even a person living on a hot air grate can find some place to store drugs (such as your back yard), if he has a mind to. The prevalence of drugs in shelters for the homeless is widely documented, and proves that rendering someone homeless does not remove the means of committing further offenses. Forfeiture of a homeowner's residence is a far cry from the "remedial" purpose announced in Calero-Toledo v. Pearson Yacht Leasing Co., supra, in which the means of committing further offenses was a ship, leased in the Caribbean, which had been used once, and could be used again, to import drugs. A remedial purpose may be assigned to the forfeiture of large boats or airplanes used by a drug cartel to smuggle quantities of drugs into the country, because, once the boat or plane is removed from the illicit smuggling operation, they may be unable to smuggle in more drugs. However, such forfeitures are the rare exception. Most forfeiture cases involve family automobiles, family residences, businesses, and cash. Most of it was only tangentially or incidentally connected to a crime, if at all. Forfeiting a family's residence or car because of the wrongdoing of one party punishes the entire family, including innocent spouses, parents and children. Civil in rem forfeitures . . . should not be used as tools for imposing punitive sanctions for criminal violations because they do not utilize sufficiently protective procedures. Therefore, punishment is not a legitimate governmental interest in civil forfeitures. Note, "Due Process Implications of Shifting The Burden of Proof In Forfeiture Proceedings Arising Out Of Illegal Drug Transactions," 1984 Duke L. J. 822, 831 (1984). Call it what you will, if it looks like punishment, smells like punishment and feels like punishment, it IS punishment. It is our position that any punishment imposed under civil forfeiture statutes is unconstitutional, and cannot legally transfer property rights away from the punished property owner.