Even The Prohibitionist Wall Street Journal Recognizes:
"The Dangerous Expansion of Forfeiture Laws"

January 5, 1998

There are two "side-issues" that logically have nothing to do with marijuana prohibition per se, the suppression of medical marijuana and asset forfeiture. There are many very dangerous drugs which are available by prescription, and the practice of arresting seriously ill or disabled people seeking to alleviate their suffering with marijuana raises moral issues that challenge the most basic human values. Nonetheless, there are strong political and economic incentives to maintain this cruelty.

Similarly, the seizure of private property of people merely accused of a crime undermines the protection of property rights that are essential to our economic system.

In September of 1992, shortly after I had become the National Director of NORML, multimillionaire Donald Scott was shot dead at his 200 acre estate near Malibu in a botched raid that was an attempt to seize his property.  Somehow the narcs had decided that he was growing marijuana, and this would have been the perfect pretext for at least extorting a large portion of the land in a "settlement." As it turned out, there wasn't even a seed found, but Scott ended up dead from a narc's bullet. What followed was very revealing: Nothing. Nothing happened. The narc who killed a multimillionaire was not charged. The people who authorized the raid were not punished. And the story went largely unreported in the media.

That fall, every time I talked to reporters, I would mention this incident. The response was always the same. They had never heard about it. To which my response was "exactly." I would gently point out that it was understandable that poor people could be killed by the police and nothing would be reported, but when a rich man is murdered at Malibu that should be news. (If that sounds cynical, think of how many poor children have been killed since Jon Benet Ramsey. Now name one.)

I really believed that the enormous power of the business community would wake up and see the danger inherent in the forfeiture laws. The respected libertarian Cato Foundation, whose advice on economic matters is widely respected in the Republican Party, sponsored a book by the very conservative Republican Henry Hyde, who introduced a bill in the House in 1994. Ah, they're waking up I thought. But for the next few years -- again nothing. The bill went nowhere. Then something happened, and it was worse than nothing. The Justice Department rewrote the bill and increased the government's power. Hyde, whose name was on a book describing the problem, is going along with the Justice version.

Now to matters even more bizarre, the leading House opponent of the Justice version is rabid prohibitionist Bob Barr (R. GA.), a former prosecutor who is opposed to allowing even medical research on marijuana. You don't have to be crazy to understand this... but it helps

To my thinking, the persecution of medical marijuana users indicates that America's leadership is soul-dead. The acceptance of the seizure of property based on nothing more than accusations of growing marijuana -- and other things which also should not be crimes -- is an indication that they are brain-dead.

Well, at the Wall Street Journal, a synapse just twitched. On December 27, the Journal editorial page carried an article by the popular libertarian author James Bovard, which succinctly describes the threat. Bovard says, "Asset forfeiture reform is an acid test of whether Congress and the Supreme Court truly care enough to protect the American people from the federal government. Property rights are too important to cast overboard with each new passing political frenzy." (Bovard, of course, would say the same thing about a person's right to use marijuana to relieve his suffering without fear of arrest, but the Journal wouldn't be like to print it.)

In any case, it remains to be seen whether the private property lobbies in Washington are going to sleep through this. At least the Journal gave them a wake up call. Experience says that alarm clocks have no effect on flatliners. And the clergy will be silent while the sick and dying fall under Dan Lungren's gubernatorial campaign. Our lights are on, but nobody's home.

(For more information on the subject, see the Forfeiture Endangers American Rights website at: http://www.fear.org/ . The new FEAR office in Washington is run by FEAR's acting Executive Director and former NORML volunteer intern, Tom Gordon. A very bright fellow.)

"The Dangerous Expansion of Forfeiture Laws"
by James Bovard
WSJ Monday, 29 December, 1997

Asset forfeiture laws have been spreading like a computer virus through the nation's statute books. Until a decade or two ago, such laws targeted primarily customs violators, but today more than 100 federal laws authorize federal agents to confiscate private property allegedly involved in
violations of statutes on wildlife, gambling, narcotics, immigration, money laundering, etc.

The vast expansion of government's forfeiture power epitomizes the demise of property rights in modem America. Federal agents can confiscate private property with no court order and no proof of legal violations.

Law-enforcement officials love forfeiture laws because a hefty percentage of the takings often go directly to their coffers. The Justice Department alone bequeathed $163 million in confiscated  assets to state and local law enforcement last year.

Forfeiture policies achieved national scandal status beginning in the early 1990s.  A federal appeals court complained in 1992: "We continue to be enormously troubled by the government's increasing and virtually unchecked use of the civil forfeiture statutes and the disregard for due process that
is buried in those statutes."

In 1993 another federal appeals court questioned whether "we are seeing fair and effective law enforcement or an insatiable appetite for a source of increased agency revenue."

A September 1992 Justice Department newsletter noted: "Like children in a candy shop, the law enforcement community chose all manner and method of seizing and forfeiting property, gorging ourselves in an effort which soon came to resemble one designed to raise revenues."

In many forfeiture cases, innocence is irrelevant.

The Supreme Court further tilted the legal playing field against ordinary people last year in a decision in a case involving the innocent co-owner of confiscated property.   John Bennis stopped on his way home from work to daily with a prostitute in his Plymouth; 'Detroit police descended on the scene and seized the car, whose co-owner was Mr. Bennis's wife, Tina. 

The court ruled 5-4 that the seizure did not violate the wife's constitutional rights even though she clearly was not complicit in her husband's illicit behavior. Chief Justice William Rehnquist wrote: "The government may not be required to compensate an owner for property which it
has already lawfully acquired under the exercise of governmental authority." 

By asserting that the government had already 'lawfully acquired" the Bennises' car simply because it had a law authorizing seizure of the car, Justice Rehnquist basically granted government unlimited power to steal: If it wants to "lawfully acquire" private property without compensation, all
it needs to do is write more confiscatory laws.

This term the Supreme Court is considering another forfeiture case, involving $357,144 seized from a Syrian immigrant, Hosep Bajakajian, who was searched at the Los Angeles airport prior to heading back to Syria.

The money consisted of profits from his two gas stations as well as loan repayments for relatives in Syria. Both a federal district court and an appeals court concluded that the money had been honestly acquired and ordered most of it returned to Mr. Bajakajian.

The Clinton administration insists that the fact that the money is untainted is "not relevant" and that the government has a right to confiscate the money solely because the immigrant failed to fill out a
required form disclosing that he was taking more than $10,000 in cash out of the country.

Mr. Bajakajian's case is not unusual. The Customs Service confiscated $56 million from outbound travelers in 1996. Immigrants are among the people most susceptible to such penalties, since, often coming from nations with corrupt customs services, they can be leery of making any declaration of
cash on hand.

According to the administration's view, because someone does not trust the government, the government somehow thereby acquires the right to rob the person.

Rep. Henry Hyde (R., Ill.), chairman of the House Judiciary Committee, took the lead on forfeiture reform several years ago. He offered a bill to moderate some of the worst abuses, declaring: "Some of our civil asset seizure laws are being used in terribly unjust ways and depriving innocent
citizens of their property with nothing that can be called due process."

His bill had the support of Democrats such as Barney Frank who rarely agree with Mr. Hyde.

The Justice Department strongly objected to the bill and lobbied Mr. Hyde to enact sweeping expansions of prosecutors' forfeiture power.

The day before marking up the bill last June, Mr. Hyde sidetracked his 15-page reform bill and pledged himself to a new 64-page bill - with almost all the new material written by Justice Department lawyers. 

This is like letting burglars write the laws on breaking-and-entering, since many of the worst forfeiture abuses are committed by justice Department employees.

Mr. Hyde pushed the new bill through the Judiciary Committee on June 21 by a 26-1 vote.  

The lone dissenter, Rep. Bob Barr (R., Ga.), a co-sponsor of Mr. Hyde's original bill, says the new bill "seems to be, precisely what the Department of Justice wanted." He adds, "The problem is that it has a good title [the Civil Asset Forfeiture Reform Act] and with the reputation of
Chairman Hyde behind it, that carries a lot of weight."

Stefan Cassella, the Justice Department's chief negotiator on asset forfeiture, characterizes most of the new provisions as "noncontroversial good government additions."

However, the new bill greatly expands prosecutors' power to seize people's assets before a trial (thereby potentially crippling a persons ability to hire defense counsel), makes it much more difficult for citizens to get summary judgments against wrongful seizures, and greatly increases the number of crimes for which government can seize a person's or a corporation's assets. 

The National Rifle Association warned its members: "Virtually any business that has any substantive inventory and that is extensively regulated by the government is in danger of having its goods seized - even for non-criminal regulatory infractions."

Asset forfeiture reform is an acid test of whether Congress and the Supreme Court truly care enough to protect the American people from the federal government.

Property rights are too important to cast overboard with each new passing political frenzy.

The U.S. can't afford to give law enforcement agents a blank check to violate the Fifth Amendment.
----
Mr.  Bovard, author of 'Lost Rights: The Destruction of American Liberty'
(St.  Martin's), has written often about asset forfeiture.