FORFEITURE LAWS MEAN A DENIAL OF CONSTITUTIONAL RIGHTS

Starting in 1970, a series of laws was passed by the U.S. Congress allowing
the government to take private property, which is called "forfeiture," with
a minimum of difficulty and legal restraint, based on the oft-stated claim
that "forfeiture is an invaluable tool in the fight against organized crime
and narcotics traffickers." While the original application of modern
forfeiture laws was for drug violations, the laws that trigger forfeiture
have greatly expanded, with the result that today we have more than 300
federal forfeiture laws. States and cities have followed the trend, of
course, with a similar and ever expanding array of laws.

Confiscation of property by the government is now a very big business --
one that will not be easy to curtail. It is estimated that the federal
government now confiscates nearly a billion dollars per year, with states
and cities likely confiscating as much or more.

The government, in its defense of forfeiture, would have you believe that
only criminals are subjected to its harsh procedures -- e.g., their theme,
"It takes the profit out of crime." First off, that is not true.

Compared to the application of other laws, a high percentage of those hit
with forfeiture are innocent victims. Second, as a civilized society, we
have learned that it is prudent to provide even suspected criminals with
some basic rights -- "innocent until proven guilty" being the first to come
to mind.

What is wrong with asset forfeiture?

- -- It punishes innocent people, especially wives and children. The medieval
legal fiction that the property itself can be guilty of a crime and that to
"punish" the property is not a punishment for the owners or users of the
property is blatant nonsense, of course.

In any case, why should wives and children lose their homes because their
husbands and fathers may have committed a crime?

- -- It is unconstitutional and vague. The Founding Fathers sought to protect
us from the notorious abuses of government confiscation of property that
England practiced at that time. Several Bill of Rights amendments address
this issue, particularly the Fourth Amendment, which says, in part, "The
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated." The Fifth Amendment assures us that we will be provided "due
process of law." Yet today, security against unreasonable searches and
seizures is virtually nonexistent.

- -- It encourages corruption, fraud and disrespect of law enforcement. If
property can be taken without due process and there is little or no
auditing of it once it's in government hands, what do you expect? The loss
of respect for government and particularly law enforcement is the greatest
cost of the forfeiture laws.

- -- The punishment is not proportional to the crime. In many states now,
automobiles can be confiscated for various perceived offenses, without
bringing charges and obtaining a conviction. Two drivers, one with a $250
clunker and one with a $70,000 sports car, pay vastly different fines --
the loss of the car -- for the same offense.

- -- Payoffs. There is considerable evidence that -- with concurrence of the
prosecutor -- real criminals often opt for forfeiture in lieu of serving time.

- -- It is not an effective deterrent of crime. The government repeatedly
defends its use of forfeiture by saying that it is an effective tool
against crime. Really? Is there any evidence of that? Is the Drug War a
success? Not according to the newspapers.

Drug usage is higher now than when these laws were first passed!

But there is another issue here: Are we Americans willing to support any
law, no matter how brutal, based on the argument that it might be a
deterrent to crime? Do we want to go back to public hanging, torture and
pillorying criminals in the public square? Surely, "effectiveness" in
fighting crime is not the only criteria we apply to laws in a civilized
society.

- -- There is little or no justice. The modern system of government
forfeiture provides little justice for the accused.

- -- Property can be taken without any charges being filed.

- Under the guise of "facilitation," all of a person's belongings can be
taken, including bank accounts, leaving nothing for legal defense.

- In civil forfeiture, the government does not provide counsel for the
indigent.

- To challenge a confiscation, the victim has a very short time to post
the necessary legal forms and often has insufficient cash to post the 10
percent bond.

But the main problem is that to be simply accused is to have your life
destroyed. Government prosecutors are constantly claiming that a forfeiture
victim can go to court and defend her property by proving the property was
never involved in a crime. There are many flaws with this concept, but the
chief ones are that legal fees will typically exceed the value of the
property and the property will lose value while "incarcerated." With the
time before trial being as much as two or three years, how does the victim
get to work and how do his wife and baby get to the doctor? What about the
deterioration and depreciation?

Surely the government pays for these losses and any damages if they lose
the case, right?

Of course not.

For the first time in nearly 30 years, we now have a chance to do something
about this injustice. Write the news media and your senators and ask that
they support the forfeiture reform bill now in the Senate.

We should not have to sacrifice "civil" society while striving to become a
"drug-free" society!

Leon Felkins is a retired major in the U.S. Army and a former member of
Forfeiture Endangers American Rights, a Washington lobby group.