THE ABUSES OF PROPERTY SEIZURE LAW

What to do with money from sale of drug dealers' assets?

Crack down on drug dealers by seizing their cars, their homes, their cash.
It's the type of policy that most citizens -- and any wise politician --
could support. But what happens when the drive to get rid of drugs begins
to run over innocent people, like the Tennessee landscaper whose money for
buying shrubs was seized by police at the airport because he fit the
``profile'' of a drug dealer?

Or the charter pilot from Nevada who unknowingly gave a drug dealer a lift
and ended up losing his business and tens of thousands of dollars in legal
fees trying to get his airplane back?

It's these real-life stories that prompted Republican U.S. Rep. Henry Hyde
of Illinois to introduce the Civil Asset Forfeiture Reform Act of 1997. The
bill, H.B. 1965, is opposed by the Clinton Administration and
law-enforcement groups who fear the changes could cripple their ability to
seize drug assets.

``Civil asset forfeiture laws promote the bedrock principle that no person
should profit from criminal activity,'' said U.S. Rep. Gerald Solomon,
R-N.Y., a leading opponent of H.B. 1965. ``Seizing expensive cars and
luxurious homes from drug traffickers not only advances the rule of law,
but also sends a powerful message that crime will not pay.''

But the push to change the laws enjoys a surprising base of support,
including Republicans, Democrats and an eclectic constituency ranging from
the American Civil Liberties Union to the National Rifle Association.

Around here, defense attorneys say the system is ripe for abuse and should
be overhauled. They tell of clients who faced the loss of their homes, cars
and businesses even though they got little or no jail time.

Local police and the U.S. Attorney's office say they apply the law fairly,
and changing it would weaken what is now a very effective deterrent to crime.

Federal asset forfeiture ``is hurting the drug business in a very good way,
from our perspective,'' said Lt. William Housley, head of the Dane County
Narcotics and Gang Task Force. ``It's a very, very effective system.''

The effort to reform the laws goes back to 1996, when Hyde and U.S. Rep.
John Conyers, D-Mich., held hearings on civil asset forfeiture. What they
heard ``appalled'' them.

``Believe it or not, federal officials have the power to seize your home,
your car, your business and your bank account -- all without indictment,
hearing or trial,'' Hyde said in a letter to congressional colleagues in
March urging passage of the bill.

Although the federal government has been allowed to seize assets for more
than two centuries, it's only in the past 14 years that the practice has
taken off. In 1984, Congress passed the Comprehensive Crime Control Act,
which beefed up the nation's asset-forfeiture system by allowing drug money
and ``drug-related assets'' to be funneled into the police agencies that
seize them.

``The federal government is taking in hundreds of millions of dollars a
year in proceeds from cash and property used in criminal activities,'' Hyde
said.

``Unfortunately, it has become all too apparent in recent years that those
civil asset forfeiture laws are sometimes being used in terribly unjust
ways, depriving innocent citizens of their property without due process.''

Local police get much of the money Federal law-enforcement officers like
the asset-forfeiture laws for obvious reasons -- they provide a deterrent
to crime by hitting criminals where it hurts, in the pocketbook. And money
from the seizures helps pay for efforts to get more criminals off the streets.

``It became clear to Congress that there was a financial benefit to
committing some types of crimes and the small amount of incarceration was
not enough of a deterrent,'' said Peggy Lautenschlager, U.S. attorney for
the Western District of Wisconsin, which includes Dane County.

Fueling the increase in seizures was the ``equitable sharing'' provision of
the 1984 law, which allowed local police to ``federalize'' their asset
forfeitures -- even if no federal law officers are involved. Any proceeds
from these seizures are split 80-20 by the local police agency and the U.S.
Justice Department, which handles the forfeiture actions in court.

Organizations such as the Dane County narcotics task force use the money to
buy drug-sniffing dogs, undercover vehicles and sophisticated
communications equipment, as well to pay the office rent and phone bills,
Housley said. Seized vehicles either are sold or used for undercover drug
buys.

Last year, the task force got about $125,000 from seized assets, Housley
said. That's a small fraction of the task force's $2.4 million budget. But
when you consider that $2.2 million is eaten up by salaries, asset
forfeiture money provides important discretionary funds, he said.

``A lot of the tools of our trade we wouldn't be able to afford out of tax
dollars,'' Housley said. ``We would not be nearly as effective if we didn't
have asset forfeiture money.''

Wisconsin also has a law allowing police to seize assets, with up to 50
percent of the proceeds to pay for the cost of investigation and 50 percent
to be sent to a state school fund. If it's cash, 100 percent is supposed to
be surrendered to the fund, under state law.

Because it is more lucrative for the drug task force, Housley said his
agency uses the federal seizure law in nearly every case.

The practice is quite routine, according to two law professors who wrote a
blistering critique earlier this year of the asset-forfeiture system
called, ``Policing for Profit: The Drug War's Hidden Economic Agenda.''

``This law gives police a way to circumvent their own state forfeiture
laws, which often require police to share forfeited assets with school
boards, libraries, drug education programs or the general fund,'' wrote
Eric Blumenson, a professor at Suffolk University Law School, and Eva
Nilsen, an associate clinical professor at Boston University School of Law.

Bruce Rosen, a Madison criminal defense attorney who has worked on several
asset-forfeiture cases, was even more pointed in his criticism:

``The beneficiaries of this (money) are supposed to be our children's
education, and hopefully it'll eventually go to lower our taxes. They (the
federal government) are taking the money and laundering it back to the cops
for the sole purpose of circumventing this law.''

Proving property is `innocent' Other areas of asset forfeiture are equally
troubling to critics. One of the biggest issues is burden of proof. Under
current laws, assets can be seized if there's ``probable cause'' to think
they were purchased with illegal money or used for illegal activity. It's
then up to the suspect to prove that his or her property doesn't fall into
those categories. Suspects also must post a bond equal to 10 percent of the
value of the seized property in order to contest the seizure.

Forcing people to prove that their property is ``innocent'' is an
``egregious deviation from the American commitment to the rule of law,''
said David B. Smith of the National Association of Criminal Defense
Lawyers, considered a national expert in asset forfeiture. ``It is amazing
that a statutory burden of proof so out of line with current notions of due
process would have survived this long.''

But Housley, of the Dane County task force, said the process is less
burdensome than it sounds.

``For most of us, it wouldn't be difficult to show where we got the money
to buy our house or where we got the money to buy a car,'' he said.

Most of us, he said, wouldn't be able to routinely make $6,500 deposits if
our paycheck was just $1,000.

As for seizing cash, Housley said, ``Do you carry $30,000 around in your
car trunk? No. No one does. The only people who carry around $30,000 in
cash are those who are engaged in illegal activity and who need to hide the
money.

``Those are the people -- and their attorneys,'' Housley said, ``who are
behind this impetus to make this a more difficult system for the government.''

Potential conflict Another aspect of forfeiture that concerns critics is
the potentially corrupting effect of allowing police to keep the assets
they seize. Last year, the NBC news show ``Dateline'' won an Investigative
Reporters and Editors' award for exposing the practice of Louisiana
sheriff's deputies' stopping motorists along Interstate 10 with little or
no cause and seizing cars and cash under the state's forfeiture laws. The
deputies created a slush fund with the money, ``Dateline'' found, paying
for a ski trip and thousands of dollars worth of pizza and doughnuts.
Hundreds of thousands of dollars were unaccounted for.

Nothing of that sort has been alleged in Dane County. And Hyde has not
proposed changing this aspect of the law, saying ``the money is being
plowed back into law enforcement, something I find wholly proper.''

Nonetheless, one local attorney said allowing the police to earn their own
money through forfeitures is a ``classic formula for abuse.'' Researchers
Blumenson and Nilsen agree, saying that requiring police to return money to
a general fund with legislative oversight would ``cure the forfeiture law
of its most corrupting effects.''

Said Jack Priester, a Madison criminal defense attorney with experience in
asset forfeiture: ``It doesn't look good for the police to be taking money
to buy things for themselves. I literally call it a `chunk of the action.'
I think it's inappropriate.''

Defense attorney Rosen pointed out that separating the police from the
profits of their work was precisely what Wisconsin lawmakers had in mind
when they mandated in 1971 that most of the money should benefit education.

``The last thing they wanted was to put the police in the position of
having a conflict of interest and being recipients of the very money
they're grabbing,'' Rosen said.

Housley countered that his agents are simply too busy trying to catch drug
dealers, gamblers and other criminals to worry about what assets they have.
And he said it would be highly unusual for someone who is totally innocent
to have their property seized.

``We don't have time to go out there and go from wealthy person to wealthy
person seeing whether they're involved in illegal enterprises,'' Housley
said. ``That's a fear tactic that sells very well to the public. The people
who are trying to get this passed need to appeal to the public.

``The illegal enterprises are lucrative enough that if you go after them,''
he said, ``you will find assets.''

Checked-by: Richard Lake