Searched & Seized:
The Kafka-esque World of Civil Asset Forfeiture

There is one area of drug war fever, though, which has suddenly ripened for reform. It's the practice of civil asset forfeiture - the government's policy of seizing houses, boats, cash and virtually any other piece of property they believe is associated with drug dealing.

The move toward change, initiated by some unlikely alliances being made on Capitol Hill, was hailed in part with these words:

"Please enter with me the Kafkaesque world of civil asset forfeiture. I advise you never to buy an airplane ticket at an airport with cash. This behavior will likely cause the ticket agent to alert police as to a possible drug dealer. You will be searched, and if you are carrying large amounts of cash it will be confiscated. Unfortunately for you, you fit a 'drug profile.'"

So spoke Rep. Henry Hyde (R-Ill), at a July 1993 press conference where he unveiled his Civil Asset Forfeiture Act, which would put constraints on civil forfeiture for the first time since it was put into wide use in drug cases in 1984. Joining the conservative congressman in drafting the bill were the left-leaning National Association of Criminal Defense Lawyers and the American Civil Liberties Union.

From the other side of the aisle, Rep. John Conyers (D-Mich), is drafting another bill that goes even further in altering the landscape of drug-related asset forfeiture. Though the motives of these congressmen differ widely, they have made the asset forfeiture program an early target of Drug War reform.

Guilty Until Proven Innocent
"Drug forfeitures are like Alice in Wonderland," says Seattle defense attorney Jeff Steinborn. "Everything you ever learned in law school is capsized in a forfeiture case."

Attorneys like Steinborn say the forfeiture floodgates opened in Washington after the 1991 State Supreme Court case Rozner v. Bellevue.

Louie Rozner was arrested by Bellevue police in 1986. Undercover detectives had been working with two middlemen who had offered to sell them a large amount of cocaine. Thinking Rozner was the source, police watched his movements. Police later said that when their middlemen told them the source was leaving his house, Rozner was seen leaving his house in a white Ford van. When the cocaine transaction failed to materialize, the detectives arrested Rozner anyway. But instead of charging him, they got a warrant to seize his van.

At the forfeiture hearing, the court ruled that it was Rozner's responsibility to show that he wasn't a cocaine trafficker or, more accurately, that his van wasn't a cocaine trafficking device. Offering no such evidence, Rozner's van was ordered forfeited.

On appeal, Rozner's attorney, Nancy Talner, argued that the detectives had not provided sufficient evidence for forfeiture. Although the Court of Appeals agreed, the Supreme Court in 1991 reversed the decision, finding Rozner responsible to prove his innocence.

Richard Troberman, a Seattle attorney who is nationally known for fighting civil forfeitures, says that there has been a "dramatic increase" in forfeitures since that decision.

"Prior to that time, law enforcement agencies were somewhat discriminating in what they took," Toberman said, "and now, [the attitude] is basically, back the truck up to the door and take everything."

Even critics like Troberman readily admit that taking proceeds and instruments of drug trafficking is a good idea. And, not surprisingly, the Justice Department places forfeiture among its "highest priorities" and claims its overall goal is "identifying and destroying the financial infrastructures of criminal enterprises."

But while such enterprises may have been destroyed with civil forfeiture, the price for that success has been scores of cases in which the owner was never shown, by anyone's reasonable standard, to be engaged in drug trafficking. Why? Because the statute does not require it.

An Old Law Learns New Tricks
One of the first large-scale independent inquiries of drug-related civil forfeiture was published in a six-part series by the Pittsburgh Press in March of 1991. Reporters Andrew Schneider and Mary Pat Flaherty reviewed 25,000 DEA seizures and concluded the civil forfeiture statute "mostly ensnares the modest homes, cars and cash of ordinary, law-abiding people."

In 80 percent of cases the Press reviewed, police seized cash and property from people who were never even charged with a crime. Repugnant as that may seem, avoiding criminal due process was precisely the original intent of civil forfeiture.

The U.S. government first used civil forfeitures in the 18th century to punish smugglers. Because the actual owners of contraband-carrying vessels were often not around at the time of arrest, the government could instead arrest the property itself. If the property were found guilty, the government would assume ownership.

In 1984, as the War on Drugs was catching fire, Congress passed the Comprehensive Crime Control Act, which greatly expanded the use of civil forfeiture. The act says that any property which was "used or intended to be used" in any drug felony is subject to civil forfeiture.

This application is considered valuable to police and prosecutors for several reasons. The foremost is that it makes their jobs easier. Instead of building a criminal case against a suspect, in which authorities must show guilt "beyond a reasonable doubt," police can win a civil proceeding simply by showing that a preponderance of evidence points to the suspect's guilt - a much easier burden.

To start a civil forfeiture case, a detective needs only a few pieces of circumstantial evidence to get a warrant to seize a piece of property. Thus begins what some say is a cake walk for police, and hell for a property owner:

First, Joe Property Owner must file a claim of ownership and a request a hearing. Then he must pay a "cost bond" equal to 10 percent of the property's value, up to $5,000. If Joe wants a lawyer he must hire one, because there's no provision for supplying public defenders in civil cases. In fact, no constitutional guarantees apply to civil cases. So when Joe does appear in court, he will find the burden of producing evidence rests upon him.

Unless he can show some convincing evidence that his property was not used for drug trafficking purposes or bought with drug money, the government can take the property. If Joe can show evidence in his favor, it is weighed against the government's, the winner being the one who is more convincing, however slim the margin.

Trusting the System
Law enforcement officials say there are adequate safeguards in the forfeiture process.

Fred Caruso, Washington's deputy attorney general in charge of forfeitures, says he has not seen one miscarriage of justice in his 25 years of lawyering. Caruso's confidence extends to Washington's execution of drug forfeiture laws.

"The public is not going to accept these laws if we aren't careful in applying them," he says. "We settle practically all our cases on a percentage basis of the equity," rather than forfeiting a home outright. (See "...Frustration")

Despite his confidence, Caruso is new to the forfeiture post. He wasn't around in 1990 when a husband and wife lost their home near Longview.

The man, retired and in his late 60s, said he had decided to try growing some marijuana when his doctor confirmed that it could help his severe headaches. When a neighbor told the police, the couple was arrested, pleaded guilty to growing marijuana and served two months in jail apiece. Then they lost virtually everything they had.

The original police report said 35 marijuana plants were found in the couple's shed. A subsequent assessment by defense attorneys' investigators found most were dead or pitifully small. But it was apparently the mere number of plants that led the couple's original attorney to urge them to make a settlement with the county prosecutor. They did, giving up their $100,000 house, their sole valuable possession, and walking away with a few thousand dollars with which to start over.

The couple later went to another defense attorney, Michael McLean, after they'd heard of other excessive forfeitures, and McLean agreed to try to reopen their case. But the Cowlitz County Superior Court refused to hear them, as they had already signed away their right to appeal. "This guy didn't know two cents about growing dandelions, and he knew that. That's why he planted so many seeds," McLean says. "Ask anyone on that drug task force, and they'll tell you, 'Of course these people weren't dealers.'"

Unlike federal law, cultivation or possession alone is not sufficient to warrant forfeiture in Washington. The statute reads unambiguously that real property is subject to forfeiture if there is a "substantial" connection between the property and the "commercial production or sale of the controlled substance." So why didn't authorities have to prove that the Blahniks' were drug dealers?

"I believe that when you have talented people working on both sides of a case like that, the outcome will be just," is the only explanation Deputy Attorney General Caruso could come up with. But the fact that the attorneys in this case didn't challenge the forfeiture seems to illustrate a fallacy in this logic: What if you don't have "talented people" working on your side of this complicated law?

Amazingly, Cowlitz County Prosecutor Doug Boole says the question of commercial activity is irrelevant. "I don't have to go out and show they were selling the stuff," he said. Theoretically, he is wrong. But in practical terms, it appears he's right.

Still, a number of high-level law enforcement officials, like Caruso, are confident that forfeiture is being handled carefully and prudently. Another of them is Sgt. Tom Zweiger, head of the Washington State Patrol's Special Narcotics Enforcement Unit. Although he admits that there may be instances of cavalier behavior by police, particularly in personal property forfeitures, Zweiger says it's rare.

"When we find out about that kind of thing, we go nose-to-nose with them about it," he says. Zweiger called the Rozner case "ludicrous," saying the State Patrol would never take a case like that to court.

The question is, how much oversight do agencies like Zweiger's have? When drug-related forfeitures were just catching on in the late 80s, the State Patrol would often play the role of advisor and assistant to the smaller agencies conducting the investigations. But Zweiger himself says that most of the current growth in civil forfeiture is in the number of smaller agencies using it. This may be due in part to the growing awareness that civil forfeiture can be very lucrative.

Seize and Ye Shall Receive
In addition to making prosecution easier, the civil forfeiture statute also makes police departments richer - by directing most of the proceeds right back to the agencies that handled the case.

In federal cases, proceeds go into what's called the Asset Forfeiture Fund. Local agencies participating in such cases can then apply for a share of the money. In state cases, Washington law originally allowed 75 percent of forfeiture proceeds to go directly to the police, keeping the remainder for the general treasury. Perhaps in the hopes of keeping more cases in state hands, the law was changed in 1991 to be even more generous to police, giving them 90 percent of the kitty.

(In Louisiana, according to the 1991 Pittsburgh Press investigation, the divvy is even more interesting: 60 percent went to the police, 20 percent to the prosecutor and 20 percent to the court fund of the judge who signed the forfeiture order.)

The fact that police departments retain the lion's share of the assets they seize seems to present a conflict of interest. But the system's defenders say that's a misconception.

Laurie Sartorio, the federal Asset Forfeiture Office's assistant director for policy and legislation, says there are "severe, extreme checks and balances" to guard against misuse. Among them, she said, are regulations against officers using forfeited money to buy cars, boats or other property for personal use, and a requirement that all proceeds be used to "increase and not supplant law enforcement resources."

But while the Justice Department insists that "no officer's employment or salary shall be made to depend upon the level of seizures" the department makes, it's apparent that if an agency's resources increase proportionally with the number of forfeitures it executes, forfeiture carries rewards.

Such a reward apparently was the motive in a Los Angeles County case in which sheriff's Deputy Gary Spencer seemed to have been so excited about seizing a secluded Malibu ranch that he couldn't afford to be cautious or prudent.

According to the Village Voice, Spencer had circulated an appraisal of the property before he had even gathered most of the evidence. Others said he had been bragging that the park service, which owns most of the land around the ranch, was going to get all the land.

Spencer got his original tip from a "confidential" DEA informant who said there were "a couple thousand [marijuana] plants" growing on the 200-acre property, which belonged to Donald Scott, a 61-year-old millionaire by inheritance.

Overhead inspections by aircraft turned up no corroborating evidence, so Spencer enlisted DEA marijuana specialist Charles Stowell to have a look. Flying at lower altitudes for three passes, Stowell finally said he "only saw about 50 plants up in the trees." (He said Scott was using the block-and-tackle method to lower his plants to water them, otherwise keeping them hidden up in the trees.)

Spencer, in order to get his two stories to mesh, tried a late-night, high-tech land mission onto the property, again turning up nothing. So instead, he told Stowell that the informant had second thoughts and now estimated the number of plants to be about 50 (which the informant denies). When Stowell agreed to sign the affidavit, getting the warrant was a cinch.

On Oct. 2 of last year, Donald Scott became "an unfortunate victim of the war on drugs." He and his wife, Frances Plante, were asleep when 32 agents from eight federal and local agencies arrived with their search warrant.

Plante told the Voice that when she awoke, the house was shaking. She ran downstairs to find the kitchen door being broken down by people with guns. She started screaming. Scott came down a moment later, with a gun in his hand, frantically trying to determine if Plante was OK. When the agents told him to put down the gun, Plante says that Scott lowered it, and he was shot dead. No drugs were ever found on his property.

For what it's worth, Deputy Spencer says Scott was pointing his gun at him when he opened fire. But either way, Scott would not have been killed if the police been more careful in their investigation.

Spencer's ends-before-means tactics have been under scrutiny since the incident. Last Spring, Ventura County District Attorney Michael Bradbury issued his report, concluding, "Donald Scott should not have died. The Los Angeles County Sheriff's Department was motivated, at least in part, by a desire to seize the property and forfeit the ranch for the government."

Says Seattle defense attorney Jeff Steinborn of such tactics: "The valid motives [of policing] in a democracy have been thwarted. Law enforcement is now motivated more by profit than by fighting crime."

Indeed, the help-yourself message to drug task forces seems to have clouded the mission. The Justice department continues to circulate memos like this one, written by former Attorney General Thornburgh as the 1990 fiscal year came to a close:

"We must significantly increase (forfeiture) production to reach our budget target. Failure to achieve the $470 million projection would expose the department's forfeiture program to criticism and undermine confidence in our budget projections. Every effort must be made to increase forfeiture income during the remaining three months of 1990."

All's Not Quiet on the Drug War Front
The Justice Department has until recently seemed impervious to change, but the balance may be shifting. In June, the U.S. Supreme Court ruled that forfeitures should be proportional to the alleged crime. In Austin v. United States, the court ruled in favor of a South Dakota man whose mobile home and auto body repair shop were seized after he was convicted of selling two grams of cocaine.

The opinion may open the door to further challenges of the statute. Civil forfeiture, since it is an action against a thing rather than a person, has never been held to constitutional standards as criminal cases are. But the Austin ruling found civil forfeiture to be subject to the Eighth Amendment's guarantee against cruel and unusual punishment and excessive fines.

Furthermore, if forfeiture is now to be considered punishment of the owner, then the Fifth Amendment's ban on double jeopardy - twice being dragged into court for the same crime - could also be expected to apply when criminal charges and civil forfeiture proceedings are brought as a result of the same crime.

But it is state lawmakers who got us into this mess and just might be the ones to get us out. While the Washington state Legislature has avoided stepping on the toes of police, federal lawmakers are on the move. Rep. Hyde's bill would impose a range of restrictions on civil forfeiture, including:

• Raising the burden of proof to "clear and convincing evidence" and putting it on the government, not the property owner;
  
• Eliminating the "cost bond" requirement for challenging forfeitures and lengthening the time for filing such a challenge;
  
• Providing an attorney for those who cannot afford one; and
  
• Allowing a person who wins their property back to sue the government for any damages it caused to that property.

Rep. Conyers' bill is expected to go even further, by requiring a criminal conviction before assets can be taken and channeling the proceeds of forfeiture through state legislatures, not police departments.

The irony that the politically untouchable drug forfeiture statute is finally being challenged by a conservative known for his strong anti-crime stance is deceptive. While Hyde indeed invoked Kafka when describing civil asset forfeiture at his July press conference, he also said that "nothing less than the sanctity of private property" was at stake.

Michael McLean, the attorney for the Cowlitz County couple, points out that the statute discriminates against property owners. (See "U.S. Attorney...") And Jeff Steinborn, the Seattle defense attorney, says of the reform effort in Congress, "it's not a victory for civil liberties at all. It's a victory for property rights. Incidentally, a few civil liberties get dragged along."

Nevertheless, Hyde's bill, expected to be heard in the House this session, is considered especially favorable because of his reputation. The long-standing belief that being less-than-vengeful against criminals is politically suicidal makes supporting a known conservative easier.

Laurie Sartorio, of the Executive Office for Asset Forfeiture, fairly represents the view of most law enforcement officials when she says the Hyde amendment would be "devastating to the civil forfeiture program."

But defenders of drug war policies are, in general, facing a number of challenges:

• Federal judges are refusing to hear drug cases in which mandatory sentencing applies and rebelling against the effectively racist differences in penalties applied to crack offenders as opposed to cocaine offenders;
  
• Attorney General Reno is drawing up plans for alternative sentencing; and
  
• President Clinton has slashed the Office of National Drug Control Policy, former Drug Czar William Bennett's cause celebre.