U.S. Rep. Henry Hyde's Civil Asset Forfeiture Reform Act of 1993 -- by Judy Osburn, F.E.A.R. Chronicles, Vol 2. No. 1, (November, 1993) "Civil asset seizure laws are being used in terribly unjust ways, are depriving innocent citizens of their property with nothing that can be called due process." U.S. Representative Henry Hyde (R., Illinois) added: "This is wrong, and it must be changed," as he introduced HR 2417 on June 15. Hyde voiced his support of civil asset forfeiture and the "delicious irony" of funding the war on drugs with forfeited cash and proceeds "from the sale of cars and boats and homes used by drug traffickers." "However," he continued, "we cannot continue to unjustly take assets from [innocent] property owners unlucky enough to be caught up in civil forfeiture proceedings. Nothing less than the sanctity of private property is at stake here." Congressman Hyde described the "Kafkaesque" world of civil asset forfeiture where exiting a plane either in the front, middle or rear of the crowd qualifies one as fitting a drug profileÄand the forfeiture of any cash in one's possession. He cited numerous examples of forfeiture abuse. "All the government need show to justify a seizure is probable cause that the property is subject to forfeiture. Probable cause can be provided by hearsay and innuendo, evidence of insufficient reliability to be admissible in a court of law. Then you must prove that the property is 'innocent.' In essence, the standard is guilty until proven innocent." According to Representative Hyde the Civil Asset Forfeiture Reform Act proposes seven "common sense changes" aimed at curbing "the rising tide of abuse now surfacing across the country:" 1) It places the burden of proof upon the government. The government would have to prove by clear and convincing evidence that property is subject to forfeiture. Though the standard of probable cause for the initial seizure remains the same as under current law, requiring the government to prove its case means that hearsay and speculation will no longer suffice for the government to dispossess property owners at trial. At present claimants must present admissible evidence to refute the government's much lower standard of probable cause. The briefing paper for the bill states that under the new burden of having to prove their case the government would also be required to prove there is a sufficient nexus between the property and the unlawful act. (Some judicial districts require a substantial connection between the property and the illegal action upon which the forfeiture is based. For example, the Eighth Circuit denied forfeiture of a truck observed upon one occasion being used to visit and tend a marijuana crop. There is no standard definition of what constitutes a substantial nexus, and some districts reject the requirement entirely.) However, there is nothing in the proposed amendments contained in HR2417 that addresses the issue of forfeiting property that is merely incidentally or fortuitously connected to the illegal action. 2) It provides for the appointment of counsel for claimants who are financially unable to obtain representation. Compensation to the attorney would be equivalent to that provided to appointed counsel in federal felony cases: $3,500 per attorney for representation at the district court and $2,500 per attorney at the appellate court. Appointed attorney fees would be paid from the Justice Assets Forfeiture Fund. 3) It makes clear that real estate owners who had knowledge of drug law violations occurring on their property can get their property back if they have taken reasonable steps to prevent others from using their property for drug transactions. Present drug related forfeiture law provides exemption from forfeiture for innocent owners of money, conveyances or real property used in a drug crime if the violation was committed "without the knowledge or consent of that owner." Some courts have interpreted this to mean that owners must prove both a lack of consent and a lack of knowledge. Under present law, it is possible to lose your property to the government merely because you reported to the police your suspicion that a tenant may be trafficking drugs. HR 2417 amends the language in 21 USC $ 881(a)(7), the real estate provision of the Controlled Substances Act, to exempt property from forfeiture that is used for illegal purposes "either without the knowledge of that owner or without the consent of that owner." However, the bill does not change the same ambiguous "without knowledge or consent" wording in the proceeds and conveyance provisions, nor does it address the hundreds of federal forfeiture statutes that provide no protection for innocent owners whatsoever. 4) It abolishes the cost bond requirement. Currently owners of property valued at less than $100,000 must post a bond up to 10 percent of the value of the property. As the briefing paper for HR 2417 points out, the requirement is unconstitutional as applied to indigent claimants and serves little purpose in other cases. The briefing paper quotes an August 1992 letter from Attorney David Smith to Ms. Kathleen Clark, Senate Judiciary Committee: "Currently, over 80% of federal forfeiture statutes are not being contested. One reason why so many forfeitures are not contested is the high cost of retaining counsel to defend a forfeiture action. The cost bond requirement is simply another financial burden on the claimant and an added deterrent to contesting the forfeiture." 5) It extends the time period a property owner has to contest the forfeiture from 10 days from the time of seizure to 60 days from the date of the first publication of the notice of seizure. One of the ironies of present law is that local rules often require that notice of seizure and intent to forfeit be published for three consecutive weeksÄthe third and possibly the second notice to appear after the deadline for filing a claim has already passed. 6) It allows prevailing claimants to sue the federal government for negligence resulting in damage to property held in the government's custody. Currently the federal government is exempt from liability for damage caused by negligent handling or storage. Property detained while awaiting forfeiture is often so deteriorated there is little value left by the time a judgment is rendered. Lack of care and inadequate storage are common, and sometimes property is stripped of equipment or vandalized by law enforcement. Hyde's press release cited the example of Jacksonville University professor Craig Klein, whose new $24,000 sailboat was damaged beyond repair in a fruitless seven hour search by U.S. Customs Agents. The interior woodwork was ripped out, the engine destroyed with a fire axe, the fuel tank was ruptured and 30 holes were drilled in the hull, many below the water line. 7) It provides for the return of property pending final disposition if continued possession by the government would cause substantial hardship to the claimant. This provision specifies the court may place conditions upon the release of the property in order to preserve its availability for forfeiture. Presently customs law allows for the release of property only upon payment of a bond in the full amount of the value of the property. The briefing paper for the bill notes that property owners often must settle with the government for a sum of money even when the government's case is extremely weak, simply to avoid the hardship caused by not having their property for the time necessary to win a victory in court. In 1989 the Second Circuit ruled that seizure of a home prior to the opportunity for the owner to be heard in court is an unconstitutional violation of due process. However, the court forfeited the home in the case anyway, saying the unconstitutional seizure merely precluded any evidence obtained from the illegal police action from being introduced at trial. The court did not suggest a means of preventing the routine practice of seizing homes prior to an adversarial hearing. The exclusion of evidence resulting from the illegal seizure is no deterrent at all since it is highly unusual for the seizing agency to stumble upon evidence of a felony during the formalities of taking control and possession of a home away from the owner. Even with HR 2417's proposed amendments owners may still be deprived of their property for 10 days while they appeal to the seizing agency for its release. Then the owner must file a complaint with the court and wait up to another 30 days for the court to make a decision. Thus owners may be deprived of their means of livelihood for over 40 days before the court rules that continued possession by the government would cause them a substantial hardship. And the bill would provide no protection at all from this constitutional violation to property owners who cannot demonstrate substantial hardship. Both the ACLU and the National Association of Criminal Defense Lawyers (NACDL) support HR 2417 as an important first step in forfeiture reform. According to ACLU President Nadine Strossen, "The ACLU believes that all civil forfeiture schemes inherently violate fundamental constitutional rights, including the right not to be deprived of property without due process of law and the right to be free from punishment that is disproportionate to the offense. Our ultimate goal, therefore, is the abandonment of all civil forfeitures. "While it certainly does not go that far, Congressman Hyde's bill does take an important first step in the right direction. NACDL President Nancy Hollander commended Representative Hyde: "Your bill is the first piece of legislation to deal with this issue. We commend you for taking such a substantial first step toward correcting problems that unfairly affect so many of our citizens."