To Protect and Collect

Taking Cash Into Custody

A Special Report On Police And Drug Money Seizures

FORFEITURE PACKAGE OFFERS MINIMAL REFORM, SOME SAY

Congress passed a forfeiture reform bill last month with great fanfare,
promising it would finally protect civil liberties and property rights.

Critics said the new law didn't go far enough, but at least it was an
important first step.

A closer look shows the law might not even be that significant.

Indeed, the bill makes some progress, and any progress is noteworthy in the
stubborn area of federal forfeitures, almost everyone agrees.

But when they examine the bill's provisions, many experts now find that the
new law is constructed with back doors and false fronts that will preclude
major change.

"It's pretty minimal," said Eric Blumenson, a law professor at Suffolk
University and author of Policing for Profit.

"It certainly doesn't change the flow of assets into the agencies that
seize them."

The Kansas City Star interviewed a dozen law enforcement officials,
attorneys and legal experts, including two who helped write the bill, to
determine what it does and does not do.

An analysis of key reforms in the bill:

Attorney fees. This much-touted provision purports to improve the lot of
property owners, but that is open to question.

Although the new law allows a judge to award attorney fees to a property
owner who wins a forfeiture case, that right already was available. For a
decade, attorneys have won fees in forfeiture cases using existing federal
laws.

The new law could actually make it more difficult to win them.

Under existing laws, attorneys only had to win their case. If the
government couldn't show its own case was "substantially justified," the
attorney got the fees.

Under the new law, the government has to prove nothing, and the property
owner must prove that he "substantially prevailed."

The big question: How do you substantially prevail?

"What does that mean?" asked Jimmy Gurule, a Notre Dame University law
professor and author of a book on forfeiture law. "You prevail or you don't."

Some, including Gurule and one assistant U.S. attorney, think that standard
will make it harder to win attorney fees under the new law.

But others think it may not even be necessary to win the case to
substantially prevail. In fact, that was the intent of Congress, said Julie
Katzman, an attorney with Sen. Patrick Leahy, a Vermont Democrat who
co-sponsored the bill.

It will probably require litigation to settle the issue, several said.

One minor improvement: Existing attorney fee law would not award fees if a
property owner's net worth was more than $2 million. The new forfeiture law
does not make that exception.

Burden of proof. Many point to a shift in the burden of proof as the most
significant change in the law. But the change will not be dramatic.

Under the old law, the government only had to prove it had probable cause
to seize property. If the owner wanted to fight the forfeiture, it was then
up to him to prove by a "preponderance of evidence " that the property was
not the proceeds of a crime.

Now it's the government that must prove that the property was the proceeds
of crime by a preponderance of evidence.

Experts point out that even though the burden has shifted to the
government, it won't make a lot of difference for several reasons.

First, preponderance of evidence is the easiest standard to meet in a
courtroom. To win, it requires only the "slightest degree" more evidence
than the opponent, as one judge described it.

(Some congressmen fought to require "clear and convincing" evidence, but
the standard was lowered during negotiations with the Justice Department.)

Second, that's about as much evidence as law enforcement and prosecutors
usually had under the old law.

"If you were a prosecutor, you knew you better have more evidence than the
other side," said Brock Stephenson, an assistant U.S. attorney who handles
forfeitures in the Dallas judicial district.

"The change in standards makes the system feel fairer ... and that
perception of fairness is nothing to sneeze at," said Frank Bowman, an
associate law professor at Indiana University-Indianapolis. "But changing
these particular words is of little more than symbolic importance."

He and others say where the preponderance burden will make all the
difference is when there is a tie -- the owner should win.

But there's one important caveat that few have addressed publicly: The
change in burden of proof only affects a fraction of forfeiture cases.

That's because it will only come up when forfeiture cases go to trial, and
only 15 percent of all forfeiture cases are contested.

True, the Congressional Budget Office estimates, using figures from the
Justice and Treasury departments, the proportion of contested cases will
increase to 30 percent.

But David Smith, a contributor to the bill and a forfeiture expert for the
National Association of Criminal Defense Lawyers in Washington, D.C.,
disputes that figure.

"I think that is ludicrous," said Smith, adding that he thought claims
would only increase 5 percent. "(Justice is) probably painting a bleaker
picture than really exists."

Indeed, the new law doesn't preclude federal agencies from still declaring
property forfeited without the approval of a prosecutor or judge. That's
called "administrative forfeiture" and it's used in the vast majority of cases.

And the new law still does not require a person to be convicted of a crime
to have property forfeited. Under the old law, few owners who had property
forfeited were even charged with a crime, much less convicted.

Cost bond. Under the old law, a property owner who wished to contest the
forfeiture in court had to file a claim of ownership with the seizing
agency and pay a cost bond of $250 to $5,000.

The cost bond became one of the most hotly contested provisions in the new
law. Law enforcement said it was needed to filter out frivolous claims.

When the dust settled, the cost bond had turned into a fine that's imposed
when a judge finds that a claim is frivolous. That's an improvement that
could allow more people into court, experts say, but it's not without risk.

Property owners don't have to pay the money up front, but they could face a
fine at the end.

If a judge determines a claim is frivolous, the owner can be subject to a
fine of $250 to $5,000, much like the old cost bond.

One other concern: The law now requires a person to provide documentation
when possible that the property belongs to him.

Even so, some law enforcement officials still worry that the new law could
lead to a flood of frivolous claims.

Smith, who strongly supports the new law, said he thinks the Drug
Enforcement Administration will try to prevent people who do not have
documentation for property from filing claims.

"We all know that is going to be manipulated by the DEA to deny people
their right to go to court," said Smith, who expects that problem to be
worked out in litigation.

Attorney representation. Another provision that has been trumpeted provides
an attorney for poor persons in a forfeiture case.

But that happens only in two areas.

A judge must appoint an attorney for an indigent whose home is being
forfeited. If an indigent already has an attorney in a related criminal
case, the judge may appoint one for the forfeiture case.

Otherwise, if police seize cash, cars or property other than a home and
there is no criminal case, legal expenses can cost up to $20,000, defense
lawyers have said.

Other provisions make such changes as:

Setting a time limit for the government to file a forfeiture complaint
while lengthening the time the government can take to notify interested
parties.

Clarifying the ability of a person to prove he is the innocent owner of
seized property so he can recover it.

Under certain circumstances, allowing owners to keep property (not cash)
during forfeiture proceedings if loss of the property presents a hardship,
such as not being able to work.

It's difficult to know what all the key players who put together the bill
think about the result -- some now prefer not to talk about it.

The offices of Rep. Henry Hyde, an Illinois Republican who backed a House
version of the bill, and Sen. Orrin Hatch, a Utah Republican who
co-sponsored the Senate bill, for the past two months did not return phone
calls or written questions.

And the Justice Department, which successfully fought to weaken the bill,
did not respond to questions or phone calls about it.

But many experts say the bill has one key flaw: It will not substantially
cut into revenue from forfeitures.

Steven Kessler, a defense attorney and former Bronx, N.Y., prosecutor who
has written a 900-page book on forfeiture law, points out that the law was
long overdue but that it doesn't go to the heart of the problem.

"I'm sorry it doesn't take the profit motive out of law enforcement,"
Kessler said. "If that motive were taken out then I think we would have
forfeiture the way it was supposed to be."

Part 2c, http://www.mapinc.org/drugnews/v00/n681/a02.html