Why FEAR exists - Forfeiture Endangers American Rights

Why F.E.A.R. exists

{Revised 3/27/02 by Leon Felkins}

The right to own property is one of the most basic principles in our form of government. The United States Constitution speaks of "life, liberty and property" all in one breath. The Fifth Amendment states that no citizen shall be "deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. . ."

Unfortunately, these familiar phrases from the Constitution do not mean what they seem to mean when "civil forfeiture" rears its ugly head -- or so says the Supreme Court. Relying on forfeiture's ancient "legal fiction" that it is the property that is on trial -- not the property owner -- the courts have interpreted away most due process protections in forfeiture cases, on the theory that property does not have rights. For example:

In criminal law, there is a constitutional right to counsel -- at the government's expense if the criminal defendant cannot afford a lawyer. In general, there is no such right in civil forfeiture proceedings. The "Civil Asset Forfeiture Reform Act of 2000" (CAFRA), for federal forfeitures, added limited provisions for counsel to indigents.
In criminal law, the person is presumed innocent, and the government must prove him guilty beyond a reasonable doubt. Until recently, in civil forfeiture law, the property owner is presumed guilty, and must prove his innocence by a preponderance of the evidence. (This also was changed for federal forfeitures by CAFRA.)
In criminal law, the defendant has a right to trial by jury, and can force the government to prove him guilty even if he has no defense. Civil forfeiture claimants are often denied any trial at all -- because the court grants summary judgment for the government, or dismisses the claimant's claim as a sanction for failing to comply with discovery. Claimants forced to represent themselves too often lose because they are outwitted by aggressive prosecutors.
A number of state courts have held that there is no right to a jury trial at all in state civil forfeiture cases. And even when the claimant is given a trial, it is not like a criminal trial -- instead of the government having to prove guilt beyond a reasonable doubt, the burden of proof is on the property owner to prove his/her innocence.

Asset forfeiture was virtually unheard until recently. In 1984, Congress overhauled the federal forfeiture laws to give the government incredible advantages over property owners, and began expanding the list of offenses which could trigger forfeiture. Now there are over three hundred federal offenses which trigger forfeiture. But the most terrifying aspect of the legislative scheme in the 1984 crime bill was that it allowed the seizing police agency to keep what they seize and forfeit. This inherent conflict of interest has lead to greater and greater abuses, as forfeiture income -- and dependence on forfeiture income -- has risen. Asset forfeiture brings in close to a billion dollars a year for the federal government alone.

Forfeiture Endangers American Rights stands alone as the only organization dedicated to reform of the forfeiture laws. Although a growing number of national nonprofit organizations support our goals, forfeiture reform is only a minor plank in their political agenda. No other organization is available to fill our role of providing an alternative to the governments' view on forfeiture, opposing police lobbying for further expansion of the power to seize property, and providing much needed assistance to forfeiture victims and attorneys.

A revised version of our formal position on forfeiture that was entered into the record of the House Government Operations Committee hearings on forfeiture in September 1992 is online at http://www.fear.org/fposit.html.

We need your financial support and your volunteer efforts. Please join F.E.A.R. and get involved in our very important battle to restore the Constitutional property rights that our founding fathers guaranteed us.