EDITORIAL: The Administrative Forfeiture Procedures Need To Be
Rewritten To Restore Due Process 

     -- by Brenda Grantland, Esq., -- F.E.A.R. Chronicles, Vol 1.
No. 5, (November, 1992)

     Currently, the federal forfeiture process starts with a Notice
of Forfeiture from the DEA, FBI, Customs, INS, Postal Service, or
other seizing agency, which is mailed to the property owner and
simultaneously published in a newspaper.  There is currently no
deadline for agency publishing and sending notice, but it generally
occurs 3 weeks to 6 months after the seizure, and in one case I
have had, as late as 3 years after the seizure.  

     Until the notice of forfeiture is sent, there is nothing the
property owner can do.  The statutes take away the right to file an
action in replevin.   Even criminal rule 41, which authorizes
motions for return of property, has, in most jurisdictions, been
construed as barring any actions for the return of property held
for forfeiture.  Ironically, a Rule 41 motion applies only to a
criminal defendant who has a pending criminal case -- it usually is
not available to an innocent owner.  

     After property owners receive the notice of forfeiture, they
have 20 to 30 days to file a Claim and pay a "cost bond" of 10% of
the value of the property, with a minimum fee of $250 and a maximum
fee of $5000, in order to preserve the right to a judicial
determination of the forfeiture case.  When numerous items of
property are seized, the government requires separate cost bonds
for each of them, to maximize the cost to the property owner of
fighting the case.

     If the property owner does not file a claim and pay the cost
bond (or apply for a waiver of the bond on the grounds he/she is
indigent) within the 20 - 30 days after notice is sent, he/she
loses, by default, all judicial remedies to contest the forfeiture. 
The forfeiture case is then, irrevocably, lost by default. 
Even when a person is truly indigent, and asks to proceed in forma
pauperis, the agency can arbitrarily and capriciously deny the
petition, without stating reasons, and without ever having to even
prove probable cause to seize the property before a disinterested
magistrate.  This trick is used in a large and growing volume of
cases to take away the property owner's day in court on the
forfeiture.  Indigent property owners cannot afford to pay counsel
to litigate the denial of in forma pauperis treatment, nor do they
have the necessary legal knowledge to represent themselves.  They
generally lose, by default, at step one.

     There is one other "alternative", although a useless one.   
Instead paying the cost bond to obtain judicial remedies, the owner
can file a petition for remission or mitigation.  The notice of
seizure often encourages the property owner to take this path
instead of paying the cost bond, and many unwary claimants fall
into that trap, waiving all judicial remedies.

     Petitions for remission/mitigation are decided by the seizing
law enforcement agency, without a hearing, at the sole and
unreviewable discretion of the seizing agency  which,  of course,
always decides to keep the property.  

     Property owners who pay the cost bond trigger a 60 period
within which the U.S. Attorney must file a forfeiture complaint or
give back the property.  However, when someone is indigent and
files a petition to proceed in forma pauperis instead of paying the
cost bond, this deadline -- the only deadline imposed upon the
government in forfeiture cases other than the 5 year statute of
limitations -- does not apply.  

     Claimants encounter a second set of traps for the
inexperienced in U.S. District Court.  After being served with a
forfeiture complaint the owner has only 10 days to file a "Verified
Claim."  No other type of civil or criminal proceeding has this
requirement.  Most people cannot find a competent forfeiture lawyer
within 10 days. 

     We believe the cost bond should be abolished, as should all
other administrative hurdles that are conditions precedent to the
right to judicial remedies.  

     The courts have held, at the urging of the Justice Department,
that agency decisions on petitions for remission and/or mitigation
are unreviewable by a court of law.  This renders the
administrative "remedy" totally ineffectual in our view.  
Petitions for remission or mitigation should either be totally
abolished, so that unwary litigants do not make the mistake of
choosing such "remedies," or they should be made into useful
remedies that shortcut the forfeiture process.  To accomplish this,
Congress would have to create standards for the granting and denial
of petitions for remission/mitigation, and make all agency
decisions reviewable.

     In federal courts, the deadlines set for property owners to
respond in forfeiture proceedings should be the same as in any
other case -- thirty days after receipt of the complaint.  There is
no reason for a ten-day deadline to file a "verified claim", and it
should be abolished. 

     The administrative process should be totally redesigned to
create a streamlined, fair process to provide an early out to
innocent owners and third parties -- instead of a mine field of
booby traps used to trick property owners into losing by default
even when the government has no case.