COPPING A PROFIT

Civil forfeiture in the U.S. led to police profiteering and the
miscarriage of justice. Do we want that here?

In the guise of finding an effective new method to fight organized
crime, the Ontario government is about to create another form of it.
Its proposed civil forfeiture law will give police the power to seize
bank accounts, cars, houses, and even jewelry on the grounds that they
are the proceeds of crime -- without the need to charge, let alone
prove, that property owners committed a crime.

Ontario Attorney-General James Flaherty announced this month that
legislation would be introduced in the fall to circumvent Ottawa's
criminal law, which, he says, "hasn't done very well in terms of
discouraging organized crime in Canada." Lobbied energetically by
police forces, encouraged by political consultants who claim that a
hard-on-crime stance pays off at the polls, and reassured by crime
"researchers" who know on which side of their daily bread the butter
gets spread thickest, Queen's Park stands poised to destroy the
distinction between civil and criminal processes, reverse the burden of
proof, smear citizens with the taint of criminality without benefit of
trial, and turn police forces into self-financing bounty-hunting
organizations.

If common sense does not suffice to raise a warning flag, a glance at
recent U.S. history will reveal a whole field of furiously flapping red
banners.

In the 1980s, America was supposedly facing an unprecedented epidemic
of drug use, the work of alien crime cartels dripping filthy lucre. The
fact that it wasn't true did not prevent U.S. law enforcement from
concluding that the best way to fight back was to take away the profits
of crime. This, in theory, would remove both the motive (profit) and
the means (working capital) for more crimes.

In the old days, if the state wanted to grab someone's property, it had
to prove beyond a reasonable doubt, first, that a person had committed
a crime and, second, that the assets the state wanted to take came from
that crime. That proved something of an obstacle. Then came civil
forfeiture.

Instead of proceeding against a person in a criminal process -- where
people could obstruct true justice by invoking frivolities such as the
right to counsel, defense against double jeopardy, and the requirement
of proof beyond reasonable doubt -- the government could move directly
against a person's property without the need to charge the individual
with an offence. Not only did property have no constitutional rights,
but the standard of proof was lowered to a mere balance of
probabilities. Indeed, the prosecutors soon found ways to lower it even
further. Best of all, in 1984 came a law that gave police the right to
keep what they seized.

Thereafter the police seized property on "probable cause," which could
amount to nothing more than hearsay from paid and anonymous informants,
and then reverse the burden of proof. Furthermore, even if the
government chose to first bring a criminal proceeding against the
owner, and lost the case, it could relitigate the same facts against
the property. It faced only the requirement of meeting a civil (balance
of probabilities) standard, and could be reassured that it had already
worn down the owner's resources and therefore his ability to defend
himself.

Matters have not improved. If the police believe someone made a phone
call from someone else's house to strike a dope deal, they can deem the
house an "instrumentality" of crime and seize it. Parents wake up to
find their car (provided it is sufficiently luxurious) forfeited to the
police as an "instrumentality" because their teenage kids tried to use
it to score a joint. Black street people in Washington have been shaken
down by beat cops for sums as little as $4, only to learn that they'd
have to post a bond of at least $250 and hire a lawyer to protest the
seizure.

In airports, customs officers and police use drug-courier "profiles" to
target people and grab their money, with ethnic minorities getting most
of the attention. This is supplemented by the use of drug-sniffing dogs
that pick up traces of cocaine on currency, thereby establishing
probable cause (this despite the fact that tests have shown 80 to 93
per cent of U.S. currency carries enough drug residue, a minuscule
amount, for dogs to pick up. Indeed, some dogs have become so well
trained that they now react to the smell of the money rather than drug
residue -- producing the intriguing possibility that simply having cash
in a wallet constitutes probable cause for it to be seized.)

Forget considerations of justice in this Alice in Wonderland world.
Even from the point of view of pure law enforcement, the results have
been appalling.

The police are sometimes given bonuses based on how much they grab. The
result is to shift resources away from violent criminals, who would be
a genuine threat, toward wealthy ones. Another result has been a
reduction in charges filed under laws where there would be fines (which
are more or less fixed in amount, and paid to the public treasury), in
favour of actions under laws where unlimited amounts of assets can be
seized.

Forfeiture frenzy also skews the choice of who gets prison time and who
takes a walk. Wealthier people can bargain their way out by offering
the police part of their property, while the poor get hard time.

In other ways, too, these laws make police forces, literally, partners
in crime. Arizona state troopers spent 18 months undercover as couriers
driving 13 tons of marijuana from Mexico in a "controlled delivery"
operation from which every gram hit the street. At the end, the police
seized $3-million (U.S.), permitting the assistant attorney-general to
declare the operation "a success from a cost-benefit standpoint."

The whole process reached its logical conclusion when a Florida sheriff
set up a "forfeiture trap" on Interstate 95 to wave down cars and seize
any cash he found. The result: an average of $5,000 a day for the law-
enforcement budget. When people noted that most of those whose money
was seized were blacks or Hispanics, the sheriff replied that most drug
dealers were blacks or Hispanics. When asked how he was so sure the
money came from crime, he pointed out that few people -- whose cars
were stopped at gunpoint -- bothered to ask for a receipt.

Despite repeated exposes of gross abuses, despite incalculable
suffering imposed on the innocent, the law enforcement community for
years was able to mobilize enough clout to block even modest reforms.
Finally, this spring, only a couple months before Ontario decided to
climb on the forfeiture bandwagon, a few changes were pushed through.

These strengthen, slightly, innocent owner protection, provide indigent
owners with counsel, and oblige the government to pay compensation if
the claimant prevails. Although police can still seize on "probable
cause," at least the government may in the future actually have to make
a case -- on weak civil grounds -- before property is forfeited.

But the U.S. reforms came at a high price. The police also won an
expanded list of crimes for which civil forfeiture could apply, the
right to demand total proceeds instead of net earnings of alleged
crimes (which greatly increases the amount they can grab), and the
right to seize an entire bank account if they think some criminal funds
(no matter how small the amount) at some point ran through it.

The ultimate justification offered for these legal atrocities is that
they are necessary to combat those filthy-rich alien narco-barons. In
reality, time after time, serious researchers have demonstrated that
the underworld consists overwhelmingly of informal networks of small-
time operators with short career life expectancies. Their earnings are
generally modest and almost always blown on fast living, leaving little
or nothing left to seize.

No one suggests those who commit crimes for profit are pleasant people.
Some are rapacious; a few are violent; all should be held accountable
for their actions. But the notion that legitimate society is under
siege by fabulously rich crime cartels made up in equal parts of stone
killers and Harvard MBAs, is Hollywood fiction.

Thus, civil forfeiture will continue to fill government coffers with
the trailer homes, cars and motorboats of ordinary citizens, many of
them innocent, with no sign of the narco-baron's yachts or gold-plated
bathtubs. That's the lesson from the United States. Unless we stop it,
it will be Canada's turn next.

R. T. Naylor is an economics professor at McGill University. He is a
co-author of a recent study by the UN Drug Control and Crime Prevention
Office.