by Andrew Schneider & Mary Pat Flaherty
THE PITTSBURGH PRESS
Copyright 1991 The Pittsburgh Press Co.
Reprinted with permission.
By Mary Pat Flaherty
The Pittsburgh Press
The U.S. Department of Justice and groups representing state and local prosecutors have pulled out of a national committee drafting a model forfeiture law because the committee wants to strengthen protections for innocent citizens and remove financial rewards to police departments that seize property.
Since 1988, the Justice Department and the prosecutors' groups have taken part in discussions to amend the Uniform Controlled Substances Act, of which civil forfeiture is a part. The act is the basis for most states' drug enforcement efforts and is being amended by the National Conference of Commissioners on Uniform State Laws.
But the prosecutors told the commissioners they no longer will take part because of suggested changes that ``are not even minimally effective in serving the interests of law enforcement,'' as the Justice Department said in a letter to the commission.
In particular, Justice objected to suggestions to increase the burden of proof in cases; demand that the value of forfeited items be proportionate to any alleged crime; and return forfeiture proceeds to state treasuries rather than to police departments that develop a case.
The Justice Department concluded its letter by saying it ``cannot support a model state civil forfeiture statute that departs so substantially from modern forfeiture practice.''
Letters of withdrawal also were sent by the National Association of Attorneys General and National District Attorneys Association. The three groups withdrew Aug. 2, the day before the conference's annual weeklong meeting.
The commissioners conference is a century-old group of roughly 300 judges, law professors and practicing attorneys from the private and public sectors who are appointed by each state's governor. The conference, based in Chicago, crafts model laws that can be adopted by legislatures as a way of bringing expertise and consistency to state laws.
In addition to the controlled substances act, the commissioners' best known effort is the Uniform Commercial Code.
``I'd have to say this is very unusual to have professional groups walk out,'' said Lawrence Bugge of Madison, Wis., president of the commissioners conference. ``We attempted to accommodate their concerns, but their view was so one-sided and arbitrary and over-reaching that the commissioners rejected it.''
Normally it takes two years to draft and approve a model law through the national group. Forfeiture has proven such a volatile issue, though, that the conference has worked since 1988 on a draft.
The prosecutors' groups served as advisory, non-voting members of the drafting committee.
The fissure comes at a critical period, when many states are considering revisions in civil forfeiture laws.
During a 10-month investigation, The Pittsburgh Press documented that forfeiture laws designed to dismantle the financial empires of drug kingpins increasingly are used against innocent citizens. Of the forfeiture cases handled through the federal system, 80 percent involve people who are never charged with a crime.
Forfeiture allows prosecutors to seize assets that allegedly are tainted by a crime, most often a drug crime. Proceeds from forfeiture, under federal law and many state laws now in place, return to the police department that developed the case.
Since 1986, law enforcement has received $1.5 billion through federal forfeiture with another $500 million estimated to come in this year through the federal program.
Neither Justice nor the attorneys general association returned phone calls seeking interviews on their decision to pull out of the drafting committee, but letters they sent to the commission sounded similar themes.
During a visit last week to the Fraternal Order of Police national convention in Pittsburgh, then-Attorney General Dick Thornburgh refused to answer a question about his department's forfeiture policy, saying he was not in town for ``politicking.''
The district attorneys association's representative, Sherry Green-De La Garza, confirmed that the issues mentioned in the Justice Department letter are the ones that caused the split.
The division, she said, likely means that prosecutors will begin approaching state legislatures with a model law similar to federal forfeiture provisions.
``I can understand why prosecutors would want that,'' said David Gibson of Brattleboro, Vt., a drafting committee member, former Vermont state senator, and state and federal prosecutor.
``The federal law is familiar to local police, it doesn't require prosecutors to do a lot of work to win their cases and it returns money to law enforcement. It is the best of all possible worlds from their view.
``But it was the feeling of the (eight-member) drafting committee that it did not contain enough protections for innocent parties,'' Gibson said.
The commissioners drafting a model state law had attempted to temper some provisions of federal forfeiture.
As detailed in The Pittsburgh Press review, the federal law creates situations in which parents may lose their home because a child is accused of growing marijuana there; farmers may lose acres of land because marijuana is found on a portion of the property; and travelers may lose cash seized by drug agents who believe the traveler fits a ``drug courier profile.'' People who have never been charged with a crime and some who have been cleared have still lost money, cars and homes to the government and have been detained, searched and stripped of cash they were carrying.
Alvin Meiklejohn, a Colorado state senator and drafting committee member, said, ``I think there has to be tough civil forfeiture, but it has to be fair and ensure due process protections. The people I represent want us to fight drugs, but they want us to do it in a way that protects innocent people. Our model law would do that. I don't think the federal law does.''
Meiklejohn also noted that some features promoted by prosecutors were included in the draft.
Those provisions include the notion of ``substitute assets'' forfeiture. That concept was designed to prevent dealers from thwarting law enforcement by moving or destroying assets police seek to seize or by sheltering assets by putting them under another individual's name.
The substitute-assets provision would allow a court to order an item of equal value to be substituted and forfeited if the item actually used in a crime was unavailable.
While the model law inserted remedies for some of those problems that have cropped up under the federal system, it still would allow for forfeiture in the absence of any criminal charge.
Another drafting committee member, defense lawyer Bryce Baggett of Oklahoma City, said, ``I think we've drafted more evenly balanced provisions than the federal law. Our hope would be that states would use the model law and indirectly we then could ask Congress to reconsider the excesses it built into the federal system.''
The draft of the model state law was presented to the full conference of the commissioners at this month's meeting and ``was very well received,'' Bugge said.
The drafting committee received suggestions about items that could be added or deleted in the law. Those suggestions will be discussed during the upcoming year before a final version of the model law is submitted for approval.