HOUSE PASSES STRICT RULES ON SEIZING ASSETS

Both parties want to rein in police power to take property

An unusual coalition of liberals and conservatives persuaded the House of Representatives yesterday to approve legislation to make it much harder for federal and state law enforcement authorities to confiscate property before they bring criminal charges in narcotics and other cases.

By a lopsided vote of 375 to 48, the House for the first time rolled back nearly 30 years of criminal measures passed at the height of what were then called wars on drugs and terrorism. Those measures substantially broadened the authority of federal and state authorities to seize houses, cars, cash, boats, planes and other assets before obtaining criminal convictions.

Without actually threatening a veto, the Clinton administration opposed the legislation, saying it would make it more difficult to combat crime. No similar legislation has been introduced in the Senate, but supporters of the House bill said that its huge victory would put pressure on the Senate to act.

The measure—which raises the legal standard for seizure, expands possible legal defenses and provides lawyers to indigent property-owners involved in such cases—attracted a remarkable coalition of lawmakers and organizations across a broad ideological spectrum.

Representative Henry Hyde, R- Ill., who has spent six years trying to pass the measure, said it "puts civil liberties back in our judicial system." He called the current system of confiscation before conviction "a throwback to the old Soviet Union."

After those remarks, the other House Judiciary Committee members who rose to endorse the measure included Representatives John Conyers, D-Mich., Bob Barr, R-Ga., and Barney Frank, D-Mass.

What made their alliance so incongruous was the fact that less than a year ago, the four lawmakers were engaged in a bitterly emotional debate over the impeachment of President Clinton, first in the House Judiciary Committee and later on the floor of the House. Hyde, the conservative chairman of the committee, and Frank, one of its ranking liberal Democrats, are often foils in law enforcement matters.

But yesterday, they were not only unified in their support of the measure, but also in accord in denouncing an administration-backed weaker substitute that the House rejected.

Frank was joined in denouncing both current law and the administration’s measure by Barr, another traditional political opponent, who said the existing law has "become the monetary tail wagging the law enforcement dog."

"Balancing the important needs of law enforcement means striking the criminal where it hurts, in the pocketbook, but not with a blunderbuss," said Barr.

But opponents of the measure said it goes too far.

"Let us not turn back the clock on the war on drugs," said Representative Jim Ramstad, D-Minn., a supporter of the alternative bill that failed.

With a growing number of cases of innocent people seeing their assets seized, the lawmakers adopted a bill that would require the government to prove "by clear and convincing evidence" that the property was subject to forfeiture because of illegal use.

Under current law, the burden of proof lies with the person whose property was seized, and the government has to show only "probable cause" that the property is subject to forfeiture, a fairly easy standard to satisfy.

In recent years, public sentiment on the issue has begun to turn, as reflected by the breadth of the coalition pushing for the measure: the American Bar Association, the National Rifle Association, the American Civil Liberties Union, Americans for Tax Reform, the American Bankers Association, the National Association of Criminal Defense Lawyers, the United States Chamber of Commerce, and pilot, boating, hotel and housing organizations.

Faced with that coalition and powerful anecdotal evidence of abusive government conduct, critics of the new legislation were unable to counter the growing perception that federal forfeiture laws are being stretched beyond reasonable limits.

Among the examples cited during the congressional debate was the case of a landscaper, Willie Jones, who went to a Nashville, Tenn., airport with $9,000 in cash to travel to Houston to buy nursery stock. He was detained at the ticket desk after paying for his plane ticket in cash, and he had the rest of his cash confiscated after officers told him that anyone carrying that much money had to be involved in drugs.

Perhaps the most compelling example of abuses of the law was the seizure by the U.S. attorney’s office in Houston of the Red Carpet Motel last year. There were no allegations that the hotel’s owners had participated in any crimes. But prosecutors claimed the management had failed to implement "security measures" dictated by law enforcement officials, including raising room rates to make them less affordable to criminals.

In California, legislators are considering two bills to increase the use of civil asset forfeiture. One, pending in a state Senate committee, would subject individuals who may have profited from white-collar crimes such as embezzlement to property forfeiture in the same way drug suspects forfeit homes and cars.

Another bill would make it easier for police to seize personal property from anyone facing pornography charges, not just those who profit from pornography.

Copyright: 1999 San Francisco Chronicle

June 25, 1999
From The Washington Times
letter@twtmail.com
http://www.washtimes.com/
By Sean Scully, The Washington Times

HOUSE PASSES FEDERAL SEIZURE LIMITS

The House voted Thursday to limit federal power to seize property of people who have never been convicted of a crime, saying police and prosecutors have gone too far in their war on drugs.

"This is a throwback to the old Soviet system where justice is the justice of the government, and the citizen doesn’t have a chance," said Rep. Henry J. Hyde, the bill’s sponsor.

Under current law, police "can seize your property on the weakest, most flimsy, diaphanous charge," said Mr. Hyde, Illinois Republican and chairman of the Judiciary Committee.

Rep. Bill Delahunt, Massachusetts Democrat, agreed. "Think about that," he said. "Eighty percent of those whose property are seized are never even charged with a crime."

The bill, passed 375-48, puts a strong burden of proof on government prosecutors to show that a property owner was aware of criminal activity or failed to take reasonable precautions to stop it. That, supporters argued, will protect innocent property owners—such as absentee landlords or spouses—from the wrongdoing of friends, relatives and tenants over whom they have no control.

"If you own something and somebody else commits a crime with it or in it, you are perfectly innocent," Mr. Hyde said.

Under current law, the federal government can seize any property— including cash, homes, vehicles—suspected of being used in certain crimes whether or not the owner has been charged, or is even suspected of, taking part of in that crime.

For example, according to testimony before the Judiciary Committee, a charter pilot lost his airplane to federal authorities in 1989 after officers found drugs in the luggage of a passenger. The charter pilot had no previous connection with the passenger and he was never prosecuted for any related crimes.

The pilot, Billy Munnerlyn of Las Vegas, later declared bankruptcy and lost his business because of the legal costs of retrieving his airplane. The plane, when it was finally returned, had $100,000 in damage and he was barred by federal law from suing the government for damages.

In order to retrieve the property, under current law, the owner must go to court, post a $5,000 bond and prove that the property was not used in a crime—forcing an owners into a "guilty until proven innocent" situation, critics say.

Critics of Mr. Hyde’s bill do not disagree that the rules for seizing assets need to be changed. They worry, however, that the bill places too heavy a burden on federal prosecutors and opens loopholes for criminals to pass their assets on to relatives.

For example, the bill forbids federal authorities to seize assets acquired through inheritance. That would mean the assets of a major drug dealer would be protected from seizure after his death as long as his relatives were not part of his drug operation.

Americans "don’t want to grant extraordinary protection to the financial henchmen of drug lords," said Rep. Asa Hutchinson, Arkansas Republican, who pushed unsuccessfully for a milder alternative to Mr. Hyde’s bill. That proposal failed 268-155.

The Hyde bill would not change the rules for the federal government to seize the assets that clearly belong to convicted drug dealers.

The government’s right to seize property has deep roots in law, but has been applied only to drug dealing and other crimes since 1970. Congress steadily has increased federal authority to seize assets, and the total value seized has jumped from $27 million in 1985 to $449 million last year.

Much of the money raised by the seized assets is returned to state and local authorities who cooperate in federal investigations -- $163 million of the $338 million seized in 1996, for example. Courts and civil libertarians have said this system creates an incentive for overzealous prosecutors and police to abuse the power to seize property and violate the normal due-process rights of property owners.

"In many jurisdictions it has become a monetary tail wagging the law enforcement dog," said Rep. Bob Barr, Georgia Republican and a former federal prosecutor.

The bill would eliminate the $5,000 bond for property owners to challenge seizures and let federal judges appoint publicly funded attorneys for poor property owners. Poor criminal defendants already have the right to publicly paid attorneys, but asset seizures are handled in civil court, where parties must pay their own legal costs.

The House Judiciary Committee estimates that the bill will cost the federal government about $52 million over five years.

The Clinton administration backed Mr. Hutchinson’s alternative, saying the original bill was too strong. It has threatened a veto of the bill passed Thursday.