[DRAFT #BG-12-1-98]

Note:  This position paper has been partially updated from the original 1992 version, but the updating is not yet complete and in particular does not reflect the changes brought on by CAFRA.  Your suggested corrections, questions and comments should be directed to Brenda Grantland by e-mail at brenda@fear.org, or by snail mail to Brenda Grantland, 20 Sunnyside, Suite A-419, Mill Valley, CA 94941.  Or call 415-380-9108, or fax to 415-331-3696.

Position Paper of Forfeiture Endangers American Rights Foundation

F.E.A.R.'s Proposal For Reform
Forfeiture Endangers American Rights Foundation
20 Sunnyside Suite A-419
Mill Valley CA 94941
Police and prosecutors describe civil asset forfeiture as "The Greatest Single Weapon In The War Against Drugs." They proclaim to the legislatures that "it hits drug dealers where it hurts -- in the pocketbooks," and that it "takes the profits out of crime, and gives them to the police."
In truth, civil forfeiture laws allow police to confiscate private property without having to pay for it, and without even having to arrest anyone, much less prove the property owner guilty of any crime.
Under current federal law and the law of most states, civil asset forfeiture allows the police to keep what they seize and forfeit. Not only do they get to keep it, but for the most part, they don't have to account for it. And even if they account for it, generally no one looks into where they got it, or what they did with it.

The Evolution of Abusive Forfeiture Laws
Until 1984, civil asset forfeiture was so rare that few Americans had ever heard of it. Even now most Americans don't know what it means, even when it has become so widespread as to generate half a billion dollars a year in revenue for the Department of Justice alone -- close to a billion a year between all the federal agencies.
Since Colonial times, forfeitures were disfavored in America. The forfeiture practices of England against the colonies were one of the reasons for the Revolutionary War.
Forfeitures for customs violations have always been allowed. Undeclared, counterfeit, or contraband goods coming across the U.S. have always been subject to confiscation without compensation to the property owner. U.S. citizens do not possess constitutional rights outside U.S. borders, and have no right to bring anything into the country. But the situation is very different when these same laws are applied to activities occurring inside the U.S. - where constitutional guarantees are supposed to apply.

The "Orwellian Amendments"
In 1984, Congress catapulted asset forfeiture into the political landscape, with the passage of the Omnibus Crime Bill, which drastically changed the federal forfeiture laws. The bill vastly expanded the forfeiture laws applicable to drug offenses. It mimicked the Customs laws by making the process "in rem", which means against the property itself instead of against its' owner. It used the "in rem" label as an exception to basic constitutional principles as it took away any semblence of due process for the hapless forfeiture victim.

Since 1984, the forfeiture laws have been drastically expanded for use inside U.S. borders, for any purpose that law enforcement could come up with -- as the "War Against Drugs," recently renamed the "War Against Crime" -- overtook America. Now, according to Justice Department Asset Forfeiture Chief, Cary Copeland, there are over 200 federal forfeiture statutes, allowing confiscation of private property without compensation for federal "offenses" ranging from drug crimes and bank or mail fraud to: making a false statement on a bank loan application, killing an endangered species of rat on your own land, collecting feathers of migratory birds such as sea gulls, or failing to report to the IRS the purchase of over $3000 in money orders within 24 hours or a cash sale involving over $10,000.
In the effort to fight the bogeyman, "Drugs" or "Crime," the police said they needed to obtain powers not permitted by the Constitution. In exchange the police promised they would take the incentive out of crime -- or "hit the drug dealer where it hurts, in the pocketbooks" -- their reasoning went. The police would take the profits criminals made off crime, funnel them back into law enforcement efforts, and soon would conquer "Crime."
The theory sounded good on paper and in television sound bites. But "Crime" is an inseperable part of human civilization; although it can be deterred, and should be punished, it is not eradicable.
What was not considered in the 1984 Omnibus Crime Bill's radical restructuring of federal law enforcement priorities and power, was the fact that shifting the lure of assets from criminals to the police would tend to corrupt the police -- and that it would shift law enforcement priorities away from apprehending violent criminals and toward the more lucrative pursuits of civil forfeiture for drug offenses.
The corruption of the police did not stop with the federal government. Starting in 1984, federal police began a program began called "Equitable Sharing" or "Federal Adoption," which allowed the federal police to recruit state and local police to work for them in seizing property under federal statutes. Under this law, local or state police could seize property -- even if the seizure was invalid under state law -- and turn it over to the federal government for forfeiture under a federal statute. If the federal forfeiture case was resolved favorably to the police, the feds would split the proceeds with the local cops -- even if the forfeiture would have been totally illegal under state law, and even if their motivation in going federal was only to evade state law.
As the 1984 amendments to the federal forfeiture laws grew in popularity among the police elements that profitted from them, state forfeiture laws were expanded to cut out the middleman -- the federal government. Across the country, state governments have stumbled all over themselves trying to enact state forfeiture statutes as draconian as the federal statutes, so that state and local police can keep all they seize.
Historically accepted in rem principles -- such as the "legal fiction" that it's the property itself, not the property owner, who is being punished, the "relation back doctrine," and the fiction that civil forfeiture is "remedial" rather than "punishment" -- were responsible for most of the unfairness and abuse civil forfeiture has caused. As Terrance Reed noted in his Policy Analysis paper on forfeiture abuse for the Cato Institute:(1)
The personification fiction that animates civil forfeiture law has given rise to truly peculiar vignettes in courtrooms across this country. Property owners whose assets have been seized by government officials often try to press their claims for relief through traditional, well-respected, legal arguments, such as that they have not been accused of criminal conduct, that they are presumed by law to be innocent of wrongdoing, or that the government has taken their property without affording them any prior notice or hearing.
Unfortunately, those facially formidable legal claims, claims that normally would find ample support in the Constitution, prove unavailing. Instead, an otherwise rational judge -- one who has earned his status through the exercise of careful, logical, and sober judgment -- informs the property owner that it is his property, not he, that is being prosecuted by the government; that, in the eyes of the government, his property is a criminal perpetrator and that it is his property's rights (or lack thereof), not those of its human owner, that determine the sufficiency of the procedures the government can use to confiscate it.

More than one property owner has been baffled by this spectacle as he tries to invoke traditional legal arguments against such government action. Such an imaginative notion of transferred responsibility for misconduct seems more natural from a child with his hand in the cookie jar than from a learned judge....
The power of these historical arguments is formidable, as the Supreme Court has acknowledged. They have been repeatedly used to cast aside fundamental notions of fairness that have otherwise guided the development of our system of justice. The notion, for example, that the innocence of a property owner is no defense to the forfeiture of his property to the government does violence to widely accepted common understandings of fair play and due process. As recently as 1974, however, the Supreme Court reaffirmed the triumph of forfeiture over protestations of owner innocence solely by reference to forfeiture's historical lineage."(2)
But that was before the 1992-1993 term of the United States Supreme Court, during which the high court issued five consecutive opinions finding constitutional violations in federal forfeiture laws.(3) These legal fictions are finally being abandoned as the courts begin to recognize that the Constitution runs deeper than any legal fiction, no matter how ancient its historical roots.
The forfeiture revolution in the Supreme Court
The Supreme Court opinions of the 1992-93 term presented a major turning point in the reform of the forfeiture laws, abandoning antiquated fictions that had been used for centuries as an excuse to get around established constitutional principles.
In the five consecutive decisions, the Supreme Court consistently agreed with us, as you will see if you compare our then-"radical" 1992 position paper with the reasoning in the five Supreme Court decisions from the 1992-93 term.
If anything, these five decisions, and the sea change in underlying theory, call into question many more constitutional problems with forfeiture laws, such as the constitutionality of applying a civil burden of proof, shifting the burden of proving innocence to the property owner, summary judgment and other procedural mechanisms that deprive the owner of the right to a jury trial, the imposition of a cost bond as a prerequisite to obtaining the right to due process.
When the 1992-93 term cases are taken to their full conclusion, civil forfeiture as a principle appears doomed. How can we, consistent with the Constitution, allow a civil process that "punishes" innocent spouses, children, landlords, lienholders and other third parties? Isn't guilt a pre-requisite to punishment?
The news media began to abandon the forfeiture issue after the 1992-93 term, thinking the problems and abuses had been resolved by the Supreme Court. But the battle to restore constitutional rights in the forfeiture process was far from over.
For all the progress we made in the 1992-93 term of the Supreme Court, we took two steps forward and then three steps back in the 1996 term, when the Supreme Court decided forfeiture was not punishment for purposes of the double jeopardy clause, and that the Constitution did not protect innocent owners from forfeiture of their property.
The need for prompt legislative change to cure further constitutional problems
We can't wait for the courts to resolve the remaining problems -- too many innocent people will be destroyed.  Forfeiture of families' homes for the crimes or infractions of one family member breeds homelessness and unfairly punishes children of wrongdoers thereby assuring they will rebel against the authority of the state creating a new generation of wrongdoers. Forfeiture is used discriminately, divesting minorities of their economic power and unfairly reducing their political strength as well. And worst of all, forfeiture corrupts the police by making them depend for their income on seizing property from others.

The cost in human misery cannot be compensated by after-the-fact lawsuits for reparations, even if the government waives sovereign immunity. Many will be too reduced to poverty or hopelessness to avail themselves of the remedy.  Massive reforms need to be implemented now.
Federal forfeiture reform bills sponsored by key U.S. Repesentatives Henry Hyde (Rep.) and John Conyers (Dem.) have gotten nowhere in the six years we have lobbied for their passage, while forfeiture expansion provisions are tucked into legislation that passes every few months.  Our elected representatives are not willing to help us reform the forfeiture laws because they are threatened by law enforcement lobbyists who bully them with threats of appearing "soft on crime."

The only solution to this dilemma is for the American public to rise up and tell their Congressmen to reform the forfeiture laws or lose their vote.  They need to hear from their constituents that restoring the rights we are guaranteed in the Constitution is not "being soft on crime."  And the only way to get the American public to wake up is to educate them to the reality that, yes indeed these laws can be used to take their property -- even if  they have nothing to do with drugs.

Table of Contents
I. Abolish civil forfeiture and allow forfeiture only under criminal forfeiture statutes, and only after conviction of the property owner, with proof beyond a reasonable doubt and all other criminal procedural safeguards
II. Require proportionality between the offense and the forfeiture, and forbid seizures and forfeitures for minor offenses, technical reporting requirements, and seizures that do not serve a legitimate law enforcement purpose but merely generate revenue
III. Narrowly restrict reliance on informants' testimony - require corroborating evidence, preserve right to confront and cross-examine informant, and abolish informant payola

IV. Restore principle of "innocent until proven guilty", prohibit seizure and detention of assets prior to trial, require early probable cause hearing, and abolish requirement of stay to preserve jurisdiction on appeal
V. Abolish forfeiture of attorneys fees, narrowly restrict asset freezes to situations where necessary to prevent removal of asset, prohibit freezes that interfere with the right to counsel and subsistence of the property owner, and provide court appointed counsel before indigents' property can be forfeited.
VI. Revamp administrative forfeiture process to remove the cost bond requirement, unreviewable discretion, and unfair deadlines imposed on claimants
VII. Prohibit frivolous, wasteful, and inappropriate use of forfeited assets and the proceeds from forfeited assets by directing the deposit of proceeds into the general treasury, with all disbursements to law enforcement going through normal appropriations channels instead of being directed into a police slush fund with no oversight
VIII. Strengthen protection for innocent owners by placing the burden of proof on the government to show the owner knew of and consented to the illegal use, and abolishing the relation back doctrine

IX. Return the responsibility of detecting and stopping crime to the police, where it belongs
X. Prevent federal trampling on states' rights to enact forfeiture statutes more protective of their citizens
XI. Abolish governmental immunities under the Federal Tort Claims Act for damages to property while detained, and create retroactive remedies to make whole the innocent owners, lienholders and third parties that have been harmed by these laws because the procedures were inadequate to protect their due process & property rights


F.E.A.R.'s Proposal for Reform
I. Abolish civil forfeiture and allow forfeiture only under criminal forfeiture statutes, and only after conviction of the owner, with proof beyond a reasonable doubt and all other criminal procedural safeguards.

A. Current Law

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 forfeiture statutes. Although the U.S. Supreme Court finally acknowledged in Austin v. United States, 113 S.Ct. 2801 (1993), that civil forfeiture is punishment for purposes of the Eighth Amendment at least, it did not go so far as to find civil forfeiture statutes to be unconstitutional per se, and it did not address the constitutionality of the burden of proof.
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.
B. Corrective Amendments
We believe the burden of proof should be on the government, and that it 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. That reasoning will no longer suffice, however, because the Supreme Court has now acknowledged that forfeiture is punishment.
II. Define a standard for determining proportionality which focuses on the culpability of the property owner

A. Current law

In the past few years there has been a huge proliferation of forfeiture statutes, with the scope of the behavior that can give rise to forfeiture seizures ever widening. The trend in a number of states is to enact legislation proposed by federal law enforcement lobbyists, which make property forfeitable for any criminal offense, no matter how trivial.

Until recently, federal forfeiture laws did not require proportionality between the offense and the forfeiture. The courts often upheld forfeitures of extremely valuable assets for minor offenses and technical violations, with no regard to the proportionality of the offense to the penalty.

F.E.A.R. member Jim Spurlock, owner of an aircraft sales company in Texas, saw two of his customers' airplanes seized by Customs. The first, a Lear Jet, was seized In January 1992 because of a tip from an informant,(4) that the airplane, which was headed for its new home in Brazil, would be carrying a large sum of money. Customs agents searched the airplane and did not find any money, nor were they able to find any other evidence of wrongdoing that would corroborate the informant's tip, but Customs seized the plane anyway. Meanwhile, they checked all the paperwork submitted to the Federal Aviation Administration regarding the plane and found a mistake on a form. To describe the owner of the plane, they had checked the box "corporation" instead of "foreign corporation." The FAA's standard response to such as mistake is to require the paperwork to be corrected.
Customs also checked the paperwork submitted on all of Mr. Spurlock's other airplane sales, and found one other paperwork mistake, again a "technical" mistake, and in April 1992, seized a plane purchased by another customer.

After detaining the airplanes several months -- the Lear jet 7 months, and the other plane 4 months, the government agreed to give them back after the customers paid "impoundment fees" -- the "fee" for the Lear jet being over $16,000. This is in addition to substantial investments made by Mr. Spurlock's customers in attorneys fees incurred in getting the planes released. Also, there was damage done to the planes during the period of their detention which cost more money to cure.
Another F.E.A.R. member had his $1.5 million yacht seized because his captain had failed to declare some fish he was bringing back to donate to a public aquarium. Our member is a noted philanthropist who over the years has contributed substantial sums, as well as marine specimens to the aquarium, among other philanthropic endeavors. He was not on board his yacht when the seizure occurred. Customs agents had boarded the boat and were looking at the fish in the tank when the customs agent asked the captain "what do you have to declare?" The captain said "nothing", thinking that he did not have to "declare" fish. There was no reason the captain would want to "smuggle" the fish into the country, since they were to be given away to a public charity. After months of seizure, the owner bought back his yacht.
What legitimate law enforcement purpose do these seizures serve? Are they really removing the means to commit another similar offense? If so, what is the government trying to deter in the case of the fish -- philanthropy?
Technical violations, such as the FAA paperwork "errors," now gives the government the power to extort $16,000 from an airplane owner, without even having to go to court, or make any showing that the government had a case that justified forfeiture as a punishment. What purpose does this seizure serve?
Like over-punishing a child for a minor transgression, disproportionate and unfair forfeiture seizures do not deter future violations but only create distrust of, and disrespect for, law enforcement.
B. Corrective amendments

(1) Limit the range of forfeitable offenses

All the forfeiture statutes on the books should be re-examined and the range of conduct that gives rise to forfeiture severely limited. Technical paperwork mistakes and failures to declare property, where there is no proof of intent to defraud, should not be the basis for forfeiture seizures. Minor infractions should be removed from the scope of forfeiture triggering offenses so that law enforcement cannot seize property for trivial offenses.

Similarly, the property owner should always be made aware of the requirements of law, violation of which gives rise to forfeiture, and the means to avoid the forfeiture, before property can be seized for failure to comply with such requirements. For example, international travellers should be warned of the customs declaration laws and the applicability of any forfeiture penalties, so that they do not unintentionally violate the law. If they are not forewarned of the penalty of forfeiture, their property should not be subject to seizure.
We believe that the best way to prevent these forfeiture seizures that serve no legitimate law enforcement purpose is to limit forfeiture to proceeds of crime, period. Short of that, for statutes allowing forfeiture of vehicles and real property used to facilitate a criminal offense, specific minimum limits should be imposed on the quantities of drugs involved before forfeiture can occur.

(2) Devise a Standard for Measuring Proportionality That Focuses on the Culpability of the Property Owner

When the U.S. Supreme Court decided in Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801 (1993) that civil forfeiture was punishment, subject to the limitations of the Excessive Fines clause of the Eighth Amendment, it did not define the standard for determining proportionality.
The Justice Department has proposed a proportionality test which focuses on the guilt of the property, and ignores the property owner's culpability. Under its test, a civil forfeiture would not be disproportionate if:
A. The criminal activity involving the property has been sufficiently extensive in terms of time and/or spacial use of the property; or
B. The role of the property was integral or indispensable to the commission of the crime(s) in question, or
C. The particular property was deliberately selected to secure a special advantage in the commission of the crime.
The problem with the Justice Department test is that it attempts to determine what would be appropriate punishment for an inanimate object, ignoring the property owners' rights. The three prongs of the test -- only one of which is needed to validate a disproportionate forfeiture -- focus only on the role of the property. The test does not even consider the degree of involvement of the property owner, the one being punished by the forfeiture.
The Justice Department obviously relied on the test proposed by Justice Scalia's in his concurring opinion in Austin, which considers whether the relationship of the property to the offense . . . [w]as . . . close enough to render the property, under traditional standards, `guilty' and hence forfeitable? 113 S.Ct. at 2815.
However, it must be noted that Justice Scalia's proposed test was rejected by the rest of the Court.
F.E.A.R. believes the Third Circuit set out the proper test in United States v. RR 1, Box 224, Dalton, 14 F.3d 864 (3d Cir. 1994), which applied the standard for proportionality defined by the Supreme Court in Solem v. Helm, 463 U.S. 277 (1983) (a criminal case):

In balancing these factors, the Supreme Court advised the courts to consider the "absolute magnitude of the crime" and the "culpability of the offender." Id. at 292-94, 103 S.Ct. at 3010-12.
In United States v. Parcel Located at 9638 Chicago Heights, St. Louis, Mo., ___ F.3d ___ 1994 WL 259428, pp. 2, 3 (8th Cir. No. 93-3350, decided June 15, 1994), the Eighth Circuit stated that the courts should consider: These cases seem to present the most logical test, given the fact that it is derived from an earlier Supreme Court case. This test also appears to reflect the current thinking of the Supreme Court.

III. Narrowly restrict reliance on informants' testimony --require corroborating evidence, preserve right to confront and cross-examine informant, and abolish informant payola.

A. Current law

(1) Informants are paid for their testimony
An investigative report released in August 1992 by Representative John Conyers, Chairman of the House Government Operations Committee, revealed that, in the prior two years, the Justice Department spent $28.6 million on informants. Sixty five Justice Department informants were paid more than $100,000 a year, about two dozen made between $100,000 and $250,000, and eight made over $250,000. The highest paid informant made $780,000 in one year. Customs also has the authority, and its own slush fund to purchase the testimony of informants to support forfeiture seizures.
These informants are paid under provisions in the forfeiture laws that allow the government to pay up to 25% of the value of forfeited property to informants whose information is used to forfeit the property.
(2) Informants, by nature, are not your average law-abiding citizen
Informants are typically not normal, hard-working, law abiding citizens making an honest living. These informants are, for the most part, criminals with extensive records. Often informants are recruited when they themselves are arrested for drug trafficking and other serious crimes, and offer to "rat on" other people in exchange for getting their own charges reduced or dismissed. They may also be offered 25% of the forfeiture "take" in addition to reduced punishment in their own cases.
Thus, paid informants have a strong incentive to lie.
(3) Informants' word is being relied on to seize property even when there is strong indicia of prevarication
Consider the case of informant Bobby Watts. A CBS Street Stories episode, aired July 9, 1992, told how information from Bobby Watts was used, without corroborating evidence, to seize the house of the Cwiklas. Bobby Watts, working off charges from his own bust for marijuana cultivation, told prosecutors that the Cwiklas had stored 300 pounds of marijuana at their residence. Later Watts changed his story to say they had stored 200 pounds, then 100 pounds, then 1 pound. According to Street Stories, Watts had a strong motive to lie about the Cwiklas:

 CBS Street Stories, July 9, 1992, transcript pages 14 - 20.
There was other evidence that Watts was not telling the truth. Another informant who was asked to corroborate Bobby Watts' allegations failed a lie detector test -- the test indicating deception on his part.
Without ever searching the Cwikla's house, or in any other way verifying Bobby Watts' allegations, Assistant U.S. Attorney Leslie Ohta's office seized the Cwikla's house and are trying to forfeit it.
The circumstances surrounding this informant's allegations should create a serious doubt in the minds of most Americans. Still, the government continues to rely on such informants "because they put money in the pot" -- in the words of former Department of Justice forfeiture chief Cary Copeland.(5)

B. Corrective amendments
(1) Property owners should never have the burden of proof in countering informant testimony
In criminal cases, informants may be useful despite the problems that are inherent with regard to their credibility. In criminal cases, however, the criminal defendant has the right to confront and cross-examine his accusers. Problems with the veracity of informants, resulting from their criminal nature, biases against the people they accuse, deals with the prosecutor for leniency in their own cases in exchange for their testimony, and especially any promises of cash rewards in exchange for their testimony, can be brought out and taken into consideration by the jury in determining what weight to give their testimony.
More importantly, in criminal cases, the government has to prove its case beyond a reasonable doubt. Informants with shaky testimony, long criminal records, and deals with the prosecutor in exchange for their testimony can be disregarded by the jury under the reasonable doubt standard of proof.
However, when the unscrupulous, self-dealing, and financially rewarded informant is used in civil forfeiture, where the burden of proof is on the property owner, anything could happen. The burden of proof being on the property owner, rather than the side presenting the purchased testimony -- the jury is in effect asked to give the informant more credibility than the property owner!
Paid informants should never be given the benefit of a doubt. When it's "my word against his", the property owner should not have to bear the burden of proof against brokered testimony. Clearly, anything an informant says should be considered very cautiously, and subject to the "beyond a reasonable doubt" standard of proof.
(2) Informant information should be corroborated before a warrant is issued or property is seized
Informant testimony may be a necessary evil in order to convict drug traffickers. However, even with the proper criminal forfeiture procedures and burden of proof, some corroboration must be required for paid informants and informants getting reduced sentences in exchange for their testimony.
Even when informants are not paid or given other consideration for their testimony, allowing one person's word to be enough to justify forfeiting property invites business competitors to ruin their competition by making false claims. This is a practice we are coming to see more and more. This practice is as dangerous to American business as the "McCarthy era" was to political liberty.
(3) Hearsay should be inadmissable at trial
No other type of case allows hearsay to be admitted at trial. There is no reason an exception should be created in forfeiture. Hearsay is too flimsy and untrustworthy to be used to deprive citizens of valuable property rights.
(4) Informants should never be paid for their testimony

No other area of jurisprudence allows eyewitnesses to be paid for recounting their version of the facts. Expert witnesses are the only witnesses paid for their testimony. They are paid because of their expertise on a subject outside the realm of knowledge of the jury. They are not paid for testifying to events they allegedly eyewitnessed, but for their professional opinions on subjects on which the jury needs their assistance.
Informants should not have their testimony bought in forfeiture cases. This taints the credibility of the entire process. No money should ever be paid to an informant for his testimony, and especially they should not be promised a percentage of the property forfeited.

IV. Restore principle of "innocent until proven guilty", prohibit seizure and detention of assets prior to trial, require early probable cause hearing, and abolish requirement of stay to preserve jurisdiction on appeal.
A. Current law
(1) Pretrial detention of assets

Currently civil forfeiture statutes allow the government to seize property, except real estate, without a warrant if: "the seizure is incident to an arrest or a search under a search warrant" or if police have probable cause to believe it is subject to forfeiture under a civil or criminal forfeiture statute. 21 U.S.C. Sec. 881(b).
Once seized, personal property is impounded by the government until the entire forfeiture case is disposed of, except in the rare cases where the government allows expedited release.(6) Once seized, no one -- not even an innocent lienholder who has the right to repossess or foreclose on the property because the owner stopped making payments on the lien(7) -- can get the property away from the government before the case is over.
Until recently, real estate, including a residence or business, could be seized on the basis of an ex parte seizure warrant, and the property owner ousted from the property pending trial -- without notice or an opportunity to be heard. The Supreme Court held in United States v. James Daniel Good Real Property, 114 S.Ct. ___ (1993) that such practices are unconstitutional when they apply to seizures of real estate. Due Process requires notice and the opportunity to be heard before real estate can be seized, the Court held, and that in most situations that should mean that the property owner not be disturbed in his possession of his property pending trial.
But the Supreme Court in Good expressly limited the holding to real property -- residential or commercial. It did not affect pretrial detention of cars, bank accounts, cash, and other personal property.
There is nothing to be gained by the pretrial detention of property -- it merely deteriorates in value, without being used and enjoyed by anyone, while the government incurs substantial costs in storing, guarding and maintaining the property -- a function that the government has been notoriously negligent at performing.
Numerous General Accounting Office reports show property is being wasted to a fraction of its seized value during government detention.(8)

A 1983 GAO report, Better Care and Disposal of Seized Cars, Boats, and Planes Should Save Money and Benefit Law Enforcement, 7-15-83 GAO/PLRD-83-94, p. ii, states:

 The end result of the pretrial detention of assets is that a property owner who fights his/her case all the way to trial and wins gets back a broken piece of junk nobody in their right mind would have spent the money fighting for. Because the government is immune from damages, the property can't sue the government for damages to the property during the detention.
Even when the government wins the forfeiture case, they get the same depreciated piece of junk. The U.S. Marshal Service -- and most police -- have better things to do than guard and care for seized property. Even if it's their job they don't do it well, because they resent such petty assignments. Most police went to work to be police officers and not parking lot attendants. Give them back their police responsibilities!
(2) No right to probable cause determination
In most non-real-estate forfeiture cases, the property is seized without a warrant, based on some exception to the warrant requirement where the police are supposed to have probable cause to believe the property is forfeitable, but no court reviews the probable cause prior to trial.
Thus the police can seize property without probable cause, and then force the property owner through the byzantine process -- requiring payment of a cost bond of 10% of the value of the property, within 30 days or less of the notice, in order to have any judicial remedies -- without having to show that they have a case. Often, they don't.
In most jurisdictions, the aggrieved property owner has no right to a post-seizure probable cause hearing at any time until trial, which may be years after the seizure.
(3) "Legalized extortion"
Asset freezes and police seizure and detention of assets prior to trial are now being used as a bullying tactic to force property owners to settle out of court -- even when the government has no case. When the property owner knows that fighting the case all the way to trial will take several years, due to backlogs in the court system, the detention of the property pending trial is often enough to force property owners to strike a deal with the government, even if the property owner has an airtight case.
Consider the case of the prestigious law firm of Kaye, Sholer, Fierman, Hays & Handler, the firm that defended Lincoln Savings and Loan. When the government sued the firm, it simultaneously froze all the firm's assets. Their bank couldn't honor the checks they had issued, leaving the firm no funds to continue its operation. Their clients began leaving. They couldn't pay their employees. Within a week they were forced to settle -- for $41 million -- without the government ever having to prove anything.

On June 29, 1992, the Orlando Sentinel reported a "forfeiture trap" set up in Volusia County, Florida, on the highway to Disney World. The police would stop motorists for driving too close, faulty tail lights, speeding, and other routine traffic stops, and would seize all their money, or sometimes their cars -- with or without any evidence of wrongdoing -- then offer to "settle" for half the value of the property. The same settlement offer was made to drug traffickers and innocent tourists alike.
In a growing number of cases, the combined economic forces of a forfeiture seizure -- no matter how unjustified -- its impact on a person's business reputation, credit, and cash flow, and the cost of forfeiture litigation, completely destroys the financial welfare of the person or business -- even when the government can not prove any wrongdoing by the property owner.
We call this "legalized extortion." It has become rampant in America. State and federal forfeiture squads have learned they can easily increase their dollar "take" overall by seizing more property, with or without a case, and then make a standard "settlement" offer to everyone, drug dealer and innocent citizen alike. The more desperate the property seizure makes the citizen, the quicker they settle. An out-of-state tourist driving to Disney World can't very well afford to fight seizure of the family car all the way to trial when their family is stranded in a hotel room.

This practice is extremely dangerous to our system of justice, and to American property rights in general. Because the law enforcement agency acts as judge, jury and executioner -- and gets to keep the proceeds -- none of its illegal practices ever see the light of day.
No one is policing the police. The police should never be above the law. Yet these laws allow just that.
B. Corrective amendments
The notion that the government should be able to seize and detain property prior to trial in a forfeiture case is something out of Lewis Carroll's Alice in Wonderland, where the rule is "punishment first, trial later." That principle is alien to our system of justice.
There is no reason vehicles should waste away on police impoundment lots while the parties wait for a trial on the forfeiture case. Impoundment of vehicles makes them deteriorate faster than being routinely used, and also causes substantial storage costs. No one gets any use out of them pending trial.
Innocent owners should not have a pyhrric victory when they win the forfeiture case and find out the asset has been destroyed pending trial. The property owner should be able to keep his/her property unless and until the government wins the forfeiture case.

The ability to seize property prior to trial also gives the government a stranglehold on the property or business owner. The American economy is dependent on business, and the viability of a business requires a fluid cash flow. When cash flow can be arbitrarily strangled, it is only a matter of time before the business suffocates. Government should not have this power to destroy business and property owners' lives prior to trial.
The obvious solution is to require that the forfeiture verdict preceed any seizure. This will cut down on the government's ability to force an out-of-court settlement in cases where they lack sufficient evidence.

V. Abolish forfeiture of attorneys fees, narrowly restrict asset freezes to situtations where necessary to prevent removal of asset, prohibit freezes that interfere with the right to counsel and subsistence of the property owner, and provide court appointed counsel before indigents' property can be forfeited.

A. Current Law

The 1984 amendments to the federal forfeiture laws allowed the forfeiture of attorneys fees. It was supposed to take away the ability of major crime lords to hire expensive legal counsel.

Once the law was put in place it was used selectively to prevent retained attorneys from representing certain defendants by seizing all the defendants' assets. Even threatening to seize their assets is enough to prevent most attorneys from representing a client. From the start the law has been used selectively, at the whim of the Department of Justice.
The U.S. Supreme Court held in Caplin & Drysdale, 109 S.Ct. 2646 (1989) that forfeiture of attorneys fees did not deny a criminal defendant the right to counsel because court appointed counsel was always available in criminal cases. We think that case should be re-examined by the Court.
If we are presumed innocent until proven guilty, then the government should not be able to take away from us our right to hire defense counsel of our chosing, from our own funds -- even if they are seized by the government. Even if the Supreme Court has ruled otherwise, we disagree, and ask our legislators to correct these abuses.
A new question is presented when the government seizes all the assets a property owner has, and thereby denies him/her the ability to retain a lawyer to defend the forfeiture case. There is no recognized right to court-appointed counsel in forfeiture cases. In a growing number of cases, the government is seizing so much of a forfeiture victim's assets that they have nothing left to retain a lawyer. As one can imagine, forfeiture victims who represent themselves always lose.

Using these forfeiture statutes and the seizure authority they bestow, police and prosecutors have been able to selectively dictate who has the right to a fair trial.
B. Corrective Amendments
F.E.A.R. is opposed to forfeiture of attorneys fees and asset freezes that interfere with the right to counsel, in all cases, civil and criminal.

Our basic concept of "Justice" -- particularly our notion that a person is innocent until proven guilty -- is turned on its head when the government can use an asset freeze or civil forfeiture to prevent a citizen from hiring an attorney to defend them.
The Supreme Court has not addressed the issue of asset seizures that interfere with the right to counsel in forfeiture proceedings. The rationale in Caplin & Drysdale would not apply in forfeiture cases, because there is currently no right to court appointed counsel in forfeiture cases, when the forfeiture seizure renders someone indigent.
F.E.A.R. believes that whenever property is seized, the owner should be able to force the courts to release a sufficient amount of seized assets to retain a lawyer. Since forfeiture is punishment, forfeiture claimants who are indigent should be entitled to a lawyer at the government's expense before they can be deprived of their property.

VI. Revamp the administrative forfeiture process to remove the cost bond requirement, unreviewable discretion, and unfair deadlines imposed on claimants.
A. Current law
(1) Suspension of right to sue

Currently, the 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 some cases 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.
(2) Cost bond
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(9) -- in order to retain their right to a judicial hearing in the forfeiture 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.
(3) In forma pauperis
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.
(4) Petitions for remission or mitigation
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. This is a particularly dangerous trap for genuinely innocent people, who often naively assume good faith on the part of the enforcing agency will result in a fair disposition.
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.(10)
(5) Judicial process
When the claim is filed and the cost bond is paid on time, the case is referred to the U.S. Attorney's Office for filing of a civil forfeiture case in federal court. In drug cases involving the seizure of an automobile, boat or airplane, prosecutors have 60 days within which to 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. It also doesn't apply to seizures of other types of property, or seizures under non-drug statutes.
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(11) within 10 days.
B. Corrective Amendments

The cost bond should be abolished, as should all other administrative hurdles that are conditions precedent to the right to judicial remedies. If forfeiture is punishment, the Sixth Amendment(12) right to a jury trial, to confront and cross-examine the witnesses and to present witnesses in his defense invalidate these hurdles to obtaining our guaranteed Sixth Amendment rights.
The courts have held, at the urging of the Justice Department, that agency decisions on petitions for remission and/or mitigation are not reviewable by a court. This renders the administrative "remedy" totally ineffectual -- as well as unconstitutional -- 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, but do not require waiver of the right to trial. 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 de novo by a court of law.
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. And whatever the deadline, the courts should have the power to grant relief for failure to promptly contest the forfeiture, if the property owner can should good cause for the failure.
VII. Prohibit frivolous, wasteful, and inappropriate use of forfeited assets and the proceeds from forfeited assets by directing the deposit of proceeds into the general treasury, with all disbursements to law enforcement going through normal appropriations channels instead of being directed into a police slush fund with no oversight.
A. Current laws
The forfeiture examples described in part III above, dealing with seizure of the Schrama's house, cars and all their personal property for a $500 offense; the seizures of Jim Spurlock's customers' airplanes for technical paperwork mistakes; and the seizure of the $1.5 million yacht for failing to declare fish -- all show how far out of hand law enforcement has gotten in its seizure spree.
They also show that the real motive behind most forfeiture seizures is greed. Current laws let law enforcement agencies keep the proceeds they seize and forfeit. This gives them the ability to create for themselves an unlimited budget with no oversight. The statutes also let them take items into government use, which often results in individual officers picking out a particular fancy car for their own use -- cars the police department would never be able to justify if they had to buy them through their appropriated budget.
Seizure fever often blinds police to the purpose behind the forfeiture laws -- solving crimes and catching criminals. Law enforcement forfeiture squads out meeting their forfeiture quotas are more concerned with the value of the asset seized than whether there is a real case justifying forfeiture. They find it easier to make a seizure of one expensive asset, such as a $1.5 million yacht, than to take $1500 from 1000 street level drug dealers -- that's a lot of work, and dangerous too. Innocent people don't fight back with violence as criminals often do.
The end result of this greed is that, more and more, the attention is turned away from solving murders, rapes, robberies, domestic violence, child abuse, and other serious crimes, or breaking up real drug rings and catching major drug traffickers, while the law enforcement agencies' focus is switched to seizing and forfeiting property from anyone who happens to fall within the ever-widening scope of the forfeiture laws.
B. Corrective Amendments
There is no reason why law enforcement, of all government agencies, should be exempt from the oversight of Congress over their budgets. There is no reason why they should not meet the same standards for justifying expenditures, nor why they should have property of higher quality than other governmental agencies.
Law enforcement has become hooked on their forfeiture slush fund, which is why so many agents have gone awry into creating their own private slush funds, beautifying their own offices with seized property, driving unnecessarily posh automobiles, and even padding their own pockets.
Obviously, government oversight over property acquisitions for law enforcement should be just as stringent as over other agencies. Law enforcement should not be permitted end runs around the budget and appropriations process.
It is time to take away law enforcement's unreviewable discretion to privateer off seized property. The proceeds of forfeited property should go into the general treasury of the United States. When law enforcement units cannot directly profiteer off seizures, seizures will immediately become more honest. Much of the abuses we have seen will probably disappear overnight.
VIII. Strengthen protection for innocent owners by placing the burden of proof on the government to show the owner knew of and consented to the illegal use.
A. Current Law
Under current federal forfeiture laws, innocent ownership is an affirmative defense. Affirmative defenses put the burden of proof on the person asserting it. This means that, even if the burden of proof is changed for forfeiture cases in general, the burden of proof would not change on the issue of the innocence of the owner as long as innocent ownership remains an affirmative defense. If forfeiture is punishment, however, it is unconstitutional for the state to make the property owner prove innocence -- the burden should be on the government to prove scienter as a part of its case.
We have already discussed the problems owners face in having to prove a negative -- that they did not know something, or that they did not consent to something -- when they bear the burden of proof. Rather than require owners to prove a negative, lack of innocent ownership should be made an element of the government's case, so that the government has to show guilty knowledge and consent in order to deprive property owners of their property.
B. Corrective Amendments

Property owners should be protected from seizure of property used by someone else to facilitate a crime unless the government can show, prior to seizure, that the owner had sufficient scienter (guilty knowledge) and mens rea (bad intent) to justify punishment. That is a basic premise of criminal law which is being overlooked as the government pursues punishment by forfeiture.

IX. Return the responsibility of detecting and stopping crime to the police, where it belongs.
A. Current Law

In Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663 (1973), the U.S. Supreme Court held that it was permissible for forfeiture statutes to put the burden of proof on otherwise innocent property owners to show that they were not negligent in allowing their property to be used to smuggle drugs. In that case, the property seized was a yacht leased by a company in the Caribbean, and used to smuggle drugs into the country. The Supreme Court reasoned, with a little help from the Justice Department, that the government should be able to use forfeiture statutes to put some of the burden of stopping crime on private citizens.

At least in the case of large boats, leased in the Caribbean (an area known for drug smuggling), without the leasor giving sufficient scrutiny to the lessee, most citizens wouldn't be too concerned that the leasing company lost its property.
The Pearson Yacht case, however, does not make a good example by which to fashion a law to apply domestically, to garden variety personal property and real estate seizures. Nevertheless law enforcement has expanded the use of this principle to pawn off upon everyday citizens the responsibility of stopping crime, by treating citizens as if they were strictly liable for the "crimes" committed by others using their property.
Several years ago, a man bought a billiards hall in a ghetto. In the past few years he has tried to clean the place up, as drug dealing has proliferated in the neighborhood, not to mention in his parking lot, and, increasingly, inside his establishment. He went to the local police and asked them for help in getting the drug dealers off his property, because they were ruining his business. He was told there wasn't anything the police could do about it. A few weeks later, they arrested him for "operating a public nuisance" (a felony), took his business license, and threatened to forfeit his business if he did not clean up the drug sales on his property.
Another example is the case of Bill Munnerlyn, a pilot and owner of a charter air service in Las Vegas, Nevada. As CBS Sixty Minutes (13) explained, Munnerlyn's Lear jet, the cornerstone of his entire business, was seized by DEA when he flew a charter passenger who, unbeknownst to Munnerlyn, was carrying a large amount of money. Munnerlyn had no reason to be wary of this particular passenger, because he was an elderly man who appeared to be what he claimed to be -- a banker. As pilot/owner of the charter airline service, he had no duty -- or right -- to search the luggage of his passengers.
The common thread to both cases is that LAW ENFORCEMENT is expecting honest, every-day, hard-working citizens to perform the police function of detecting and preventing crime. They are expected to police their customers:

B. Corrective Amendments
Police officers, when they apply for the job, know that certain risks are inherent in their job description. They are hired to do the job, notwithstanding those risks, and to detect crime, find the culprits, arrest them, and testify against them in court. This is not a job for private citizens -- not now, particularly in places like Washington D.C. and other major cities, where the crime world is a very dangerous thing to oppose.
The government has no right to palm off police responsibilities on private citizens and take their property when they fail to perform satisfactorily. This negligence standard for forfeiture seizures from innocent owners must be abolished.
X. Prevent federal trampling on states' rights to enact forfeiture statutes more protective of their citizens.
A. Current Law

A number of states have enacted statutes giving innocent owners greater protections than the federal forfeiture statutes. Federal authorities are not bound by the state forfeiture laws, however. Local police can make an end run around state forfeiture laws by asking federal agencies, such as the DEA or FBI, INS or Customs, to adopt the forfeiture. They then get to split the proceeds with the "adopting" federal agency.
In most cases, the "adopted" forfeitures would be illegal under state forfeiture law. Federal adoption can also intrude on state constitutional rights. The highest court of New York has recognized more protective state constitutional rights regarding illegal searches and seizures(14) than are recognized by the U.S. Supreme Court, interpreting the federal constitution. However, it is an open question as to whether the federal authorities have to abide by the New York Constitution when seizing property from New York residents.

B. Corrective Amendments
We believe that any state that makes the effort to enact state forfeiture statutes should not have their forfeiture statutes overridden within the boundaries of their borders, by the federal government's use of "adoption" procedures. We believe this is an unconstitutional intrusion on states' rights.

When a state legislature has passed forfeiture statutes, the federal government should abide by its standards when operating within its boundaries. This goes for DEA and FBI seizures as well as "adoption" cases. Until federal forfeiture laws begin to protect citizens' due process and property rights, citizens should be able to turn to their own states for protection, and their states' will in this regard should be honored inside its own borders.
XI. Abolish governmental immunities under Federal Tort Claims Act for damages to property while detained, and create retroactive remedies to make whole the innocent owners, lienholders and third parties that have been harmed by these laws because the procedures were inadequate to protect their property rights.
A. Current Law
(1) Damages to impounded property
On March 13, 1992, United Press International reported that, in 1989, Jacksonville University Professor Craig Klein's new $24,000 sailboat was boarded by 11 customs agents looking for drugs which were never found. Armed with fire axes, powerdrills and a chain saw, they did $50,000 worth of damages to the boat, going so far as to drill holes in the hull and sails. "They literally chopped the engine up with a fire axe," Professor Klein said. "They left the boat in a sling at the marina. It was just a wreck."
When Professor Klein demanded that customs repair the damages, they told him they were immune from damages -- which is true under current law. The Federal Tort Claims Act, 28 U.S.C. Sec. 2680(c) exempts the federal government from liability for "any claim arising in respect of . . . the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer."
(2) Damages to lienholders
In 1983, F.E.A.R. members Carl and Mary Shelden of Moraga, California became two of the earliest innocent victims of the forfeiture laws when their former residence, which they had sold in 1979 and owner financed -- after exercising the normal scrutiny employed in such real estate transactions -- was seized and forfeited. The buyer of the property, who owned a clothing store chain, appeared to be a legitimate businessman. What the Sheldens and the rest of the community didn't know was that he had also been involved in prostitution. When he was convicted, the property was forfeited under RICO. The Sheldens were not given notice nor opportunity to be heard regarding the disposition of the forfeited assets.
When the property was forfeited, its appraised value was $350,000. The Sheldens had a $160,000 second trust lien -- by far, the largest interest in the property.
Although the 1983 RICO statute required the government to sell the property as soon as was commercially feasible, and to protect the interests of innocent third parties and promptly pay off lienholders, the U.S. Attorney entered a stipulation with the criminal defendant's lawyer that the criminal's family could live in the property, rent free, while the defendant's appeal was pending. No provision was made in the stipulation to guarantee payment of the Sheldens' mortgage lien, nor did the government, which acquired all right and title to the property by virtue of the forfeiture verdict, assume the mortgage. They were left in limbo. The criminal's lawyer made payments to them, as he could, from the proceeds of the criminal's other properties, but nothing guaranteed it in writing. The Sheldens never consented to extending this mortgage past the change of ownership in the property.
The Sheldens hired lawyer after lawyer and did everything they could think of doing to try to protect their interest. They frequently tried to foreclose on the mortgage, but were rebuffed at every turn by the government.
Two years later, the criminal defendant's conviction was overturned on appeal, and the forfeiture verdicts were remanded to the trial court. The Sheldens again tried to foreclose, but the criminal defendant had declared bankruptcy the day his conviction was reversed. While they were in the bankruptcy court, trying to defend their interests, they learned the property had been seriously damaged since the forfeiture. They hired an appraiser and found out it had been reduced to a fraction of its former value by waste. A retaining wall the criminal had erected on the hillside property before he was arrested had fallen, while the property was in government custody, and no move was made to correct the damage, nor to inform the Sheldens about it. The erosion resulting to the hillside undermined the foundation of the house, causing it to crack open, throughout the house. In places one can see daylight through the wall. There is a crack in the front facade wide enough to bury a hand up to the top knuckles.
After hearing of the engineer's reports, the bankruptcy court told the Sheldens they could foreclose, since the property was virtually worthless. They did "foreclose", but had to evict the criminal's family, who were still living there. They tried for a while to rent the damaged house, but found it increasingly difficult, and were forced to move back into it, their savings wiped out fighting the government.
In 1988 they hired their 11th lawyer on the case, to file suit to try to recoup the rest of the value of their lien, which the government had destroyed by allowing the property to waste. The suit was filed in U.S. Claims Court, and alleged that since they were innocent lienholders who did everything they could have been expected to do, under the circumstances, the failure of the government to sell the property and promptly pay off their lien -- in its entirety -- was a "taking" under the Fifth Amendment, entitling them to just compensation.
In January 1990, the U.S. Claims Court ruled in the Shelden's favor, finding there had been a "taking" requiring just compensation. The case was set for trial on the issue of damages in August 1990. One week before trial the Justice Department filed a "motion for reconsideration" -- a motion that was required to be filed within 10 days of the order, and thus was seven months late. After reconsidering and sitting on the motion for almost two years, in June 1992, the judge reversed himself and said there was no "taking" and dismissed the suit.
Meanwhile, in 1990, the Sheldens discovered that the federal government still owned the property they had taken possession of and been living in. Through the checking of records in relation to their civil suit, they learned that, in 1989 the criminal defendant plea bargained and got probation and title to two of the forfeited properties. The government quit claim deeded those two of the forfeited properties back to the defendant, but forfeited all other remaining properties, including the property the Sheldens previously held a lien on, had "foreclosed" upon, and were now living in, to the federal government. No effort was made to notify the Sheldens of this.
The government finally gave the Sheldens a quit claim deed to the damaged property in May 1990.

In 1993, almost 10 years after their saga began, the Court of Appeals for the Federal Circuit held that there had been a "taking" of their mortgage, in violation of the Fifth Amendment's Just Compensation Clause, when the government forfeited the underlying property.   The Court remanded to the Court of Federal Claims for a trial on the amount of damages owed as "just compensation" for their mortgage.  After a trial in the summer of 1994 and an award of over $200,000 in damages in August of 1997, the government appealed a second time.  The case settled on the merits in December 1997.  The petition for attorneys fees, which is still pending as of this writing in December 1998, will hopefully be settled soon.
Most innocent lienholders could not afford to litigate 14 years to be made whole, and most attorneys would not take such a case on a contingency, hoping to get their attorneys fees paid by the government under one of the fee-shifting statutes.

B. Corrective Amendments
The exemption from liability for law enforcement should be stricken from the Federal Tort Claims Act.
The saga of Carl and Mary Shelden show that corrective, retroactive remedies need to be enacted to make reparations for the damages done to innocent lienholders. What happened to the Sheldens should never happen -- statutes should require the government to pay off lienholders -- in full -- when they forfeit the property. No innocent lienholder should have to fight the government 10 years and beyond for what was rightfully theirs in the first place. Retroactive remedies should be enacted creating a simple process to make whole the innocent lienholders who lost any part of the value of their liens because of inadequate protection of their interests under previous forfeiture statutes.


It is our firm and patriotic belief that the United States Constitution and our basic human rights to own property and to have Justice in the courts assume these things: that a person is innocent until proven guilty, that a person cannot be punished without being proven guilty beyond a reasonable doubt, that we have a right to confront and cross-examine our accusers, that we should be free from unreasonable searches and seizures of our person and our property, that we have a right to own property which is as important as our right to be free from incarceration, and that the punishment should fit the crime and should follow rather than precede the trial.

We believe that forfeiture is punishment -- for all purposes. We believe that applying civil burdens of proof is unconstitutional, and that any person who was not convicted of a crime but nevertheless lost property under those standards should have a new trial. We believe that every time forfeiture statutes allowed innocent lienholders, or anyone who qualified for the Pearson Yacht defense, to lose any portion of their property rights to the government, it was a "taking" which requires just compensation, not just whatever compensation the government decided to give them.
We believe a large number of American citizens have been harmed severely by these unfair laws, and demand reparations. We ask for retroactive remedies for property owners who are found to be innocent under the standards set out above.

If the government needs money to finance law enforcement, Congress should raise taxes for that purpose. The "War on Drugs/Crime" should not be financed by a lottery tax that hits a few selected people, destroying them financially in order to spare the rest the inconvenience of fairly-assessed taxes. Nor should the police be empowered to raise their own funds by thievery and extortion, for such a system only breeds crime and corruption in police forces while it erodes the public confidence in law enforcement.

1. See Generally, Terrence Reed, "American Forfeiture Law: Property Owners Meet The Prosecutor," Policy Analysis, Cato Institute, (1992).

2. 2 The case he is referring to is Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663 (1974).

3. United States v. James Daniel Good Real Property, 114 S. Ct. 492; 1993 U.S. LEXIS 7941; 126 L. Ed, 2d 490 (1993) I don't have all the cites right now.

4. Mr. Spurlock has strong evidence that the informant was his business competitor -- in fact, the competitor publicly bragged of being the informant.

5. 5 The Orlando Sentinel reported on August 4, 1992:

Cary Copeland, Justice forfeiture chief, said the snitch payoffs are moneys well spent.

He said the law forbids Justice from paying more than 25 percent of a seizure to an informant. That means, he said, that the $30 million in snitch stipends the past two years has netted at least $120 million in forfeited funds during that time.

"We're not paying it to them because we like them," Copeland said. "We're paying them because they put money in the pot."

"Informants Make Out Like Bandits," Orlando Sentinel, page A-1, August 4, 1992.

6. See 21 C.F.R. Sec. 1316.92.

7. See In Re Newport Savings and Loan Association, 928 F.2d 472 (1st Cir. 1991).

8. See Better Care and Disposal of Seized Cars, Boats, and Planes Should Save Money and Benefit Law Enforcement, 7-15-83 GAO/PLRD-83-94; Statement of Arnold P. Jones Before the Committee on the Budget, United States Senate, on Customs' Management of Seized and Forfeited Cars, Boats, and Planes, Statement, 4-3-86; Statement of Gene L. Dodaro Before the Subcommittee on Federal Spending, Budget and Accounting, United States Senate, Real Property Seizure and Disposal Program Improvements Needed, 9-25-87 GAO/T-GGD-87-28; Seized Conveyances: Justice and Customs Correction of Previous Conveyance Management Problems, 2-3-88, GAO/GGD-88-30; Statement of Gene L. Dodaro Before the Subcommittee on Crime, House of Representatives, on Asset Forfeiture Programs: Corrective Actions Underway But Additional Improvements Needed, 3-4-88, GAO/T-GGD-88-16; Statement of Gene L. Dodaro Before the Subcommittee on Federal Spending, Budget and Accounting, United States Senate, on Asset Forfeiture Programs: Progress and Problems, 6-23-88, GAO/GGD-88-41; Statement of Gene L. Dodaro Before the Subcommittee on Crime, House of Representatives, on Asset Forfeiture: An Update, 4-24-89, GAO/T-GGD-89-17;

Statement of Richard L. Fogel Before the Subcommittee on Oversight, House of Representatives, Profitability of Customs Forfeiture Program Can Be Enhanced, 10-10-89, GAO/T-GGD-90-1; Asset Forfeiture: Need for Stronger Marshals Service Oversight of Commercial Real Property, 5-91, GAO/GGD-91-82.

9. When numerous items of property are seized, the government often sets separate cost bonds for each of them, maximizing the property owner's costs of fighting the case.

10. The only types of property owners who ever win in the administrative forfeiture process are a certain class of commerical lienholders. We have heard rumors about an agreement made between the Department of Justice and a national organization of lienholders that, in exchange for certain unknown consideration -- probably a promise to remain silent -- the members of the lienholder association would get special treatment from the Department of Justice in forfeiture cases. The only corroboration for this rumor we have been able to find is in the Houston Chronicles article by Dianna Hunt, published May 17, 1992.

11. As one can expect, competent forfeiture lawyers are a rare breed, virtually extinguished financially when all their clients' assets are routinely confiscated pre-trial.

12. The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

13. First aired 4-5-92, rerun 8-30-92.

14. People v. Guy F. Scott, 1992 N.Y. Lexis 940, Court of Appeals of New York, decided April 2, 1992.