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Seized Property in Crime Cases Causes Concern
by Stephen Labaton
May 29, 1993
Special to the New York Times
Washington, May 29--The bounty from America's war on crime sits
in building lots and parking lots, in marinas and airfields and
bank vults around the nation: billions of dollars' worth of cars,
boats, planes, jewels, homes and other valuables seized by state
and federal agents from people accused of high profile crimes.

     To many prosecutors, the laws that allow them to confiscate
the assets of suspects are both a powerful weapon against drug
trafficking, illegal immigration, racketeering and white-collar
crimes and a way to raise money for schools, libraries, police
departments and prisons.

     By last year the Federal Government had an inventory of
seized property worth $2 billion, up from $33 million in 1979,
according to a Federal study. Billions more have already been
sold at auction. By some estimates, the states have collected
even more, although no precise figures exist.

Considering Limits

     But to a growing number of critics, the seizing of suspects'
property--asset forfeiture, as it is called--is out of control, a
system all too easily abused by overzealous prosecutors eager to
meet budget targets by taking as much property as they can.

     Prompted by a tide of complaints about the seizure of cars,
homes and businesses from people who have not been convicted of
anything (or sometimes even formally charged), the Federal
courts, Congress and the Clinton Administration are all
considering ways to limit the discretion of prosecutors.

     Civil liberties groups and defense lawyers have long
maintained that the existing rules make it too easy for the
government to take assets. Now they have been joined by another
powerful lobby: banks and other loan companies, which say they
have become victims of the law because often the cars, homes and
boats that are seized, and sometimes neglected, were the
collateral for loans to the accused.
     
High Court Weighs In

     And with greater frequency, Federal judges and former
prosecutors have been criticizing the Government's seizures as
excessive in some instances. Already in this term, the Supreme
Court has handed the Government two defeats in asset forfeiture
cases, and a ruling against the United States in a third case
under review could deal a significant blow to all prosecutors.

     In that case, a North Dakota man lost his car repair
business and his trailer after selling two grams of cocaine to an
undercover agent, and the Court now faces the question of whether
the Constitution requires that such seizures be proportional to
the crime.

     Attorney General Janet Reno, in one of her first acts,
ordered a review of the asset forfeiture procedures, even though
the guidelines had already been tightened two months earlier. New
guidelines are expected in a few months.

     And the House Committee on Government Operations plans to
hold hearings next month to discuss what its chairman contends
are abuses.

     Although there is no consensus in Congress on changing the
system, it has come under attack from conservative Republicans
like Representative Henry J. Hyde of Illinois as well as liberal
Democrats like Representative John Conyers Jr. of Michigan.

A Convenient Law for Prosecutors

     The idea of confiscating property involved in crime grew out
of English common law, and the first forfeiture law here was
enacted by the First congress in 1789. But it and subsequent laws
were not widely used until the mid-1980's when the Government
stepped up its prosecutions of narcotics and money-laundering
violations.

     More than 100 Federal and state laws authorize seizures,
with the most prominent ones enacted in the last 10 years to
combat narcotics trafficking, racketeering and white collar
crimes. The theory behind most of the laws is the same: the
Government has a right to any property that is the fruit of a
crime or was used in committing an offense.

     But the new laws have become the darling of prosecutors
because they need significantly less evidence to seize criminals'
property than to convict the criminals themselves.

     Rather than showing that a defendant is guilty beyond
reasonable doubt, the standard used for criminal convictions, the
Government in forfeiture cases must show only that it has
probable cause to believe that the property was part of a
criminal act. This lower standard is the same as the one
necessary for an arrest or search warrant. And once the property
is taken, defendants must often prove their innocence before they
can get back their homes, cars or money.

     Prosecutors acknowledge that in tens of thousands of cases
property is taken from individuals who are never charged or
convicted of crimes. Rather, because it often costs more to hire
lawyers than the property is worth, defendants either abandon
their property or let the Government keep it in exchange for not
being charged.

     Last year Federal immigration officials seized 17,000 cars
from people suspected of smuggling undocumented workers across
the border. Rather than indict the drivers or the illegal aliens,
the Government takes their property and sends them back across
the border, or else promises to return their property for a $500
fee.

Cases of Abuses Lead to Criticism

     In part, changes in the courts and Congress and the
Administration have been motivated by wider coverage od abusive
cases in the news media.

     In Malibu, Calif., last October, Donald P. Scott was killed
on his 200-acre ranch by local authorities who said they had
information that Mr. Scott was growing marijuana. Mr Scott was
shot after 31 people from eight law enforcement agencies went to
the ranch and entered his house.

     Witnesses said the agents were greeted by Mr. Scott holding
a handgun, which he refused to put down. They said the suspect,
who was recovering from eye surgery, was drunk, half asleep and
under the impression that the officers were process servers with
a suit from his former wife.

     On March 30, the Ventura County District Attorney concluded
that local and Federal authorities had no reliable information
and that the Los Angeles County Sheriff's office and other law
enforcement authorities had been primarily motivated by a desire
to seize the ranch.

     The broad latitude given to prosecutors about when to sue
the forfeiture laws has raised questions about fair treatment.

     IN one of the starkest examples, the authorities confiscated
the house of a couple in Hamden, Conn., after their grandson who
lived with them was charged with selling marijuana. Prosecutors
acknowledged that they had no evidence tying the grandparents to
the activities of the grandson.

     Leslie C. Ohta, the Assistant United States Attorney in
Hartford who ran the asset forfeiture program at the time,
oversaw an operation that confiscated $26 million in property in
six years.

     Last year, Ms. Ohta's 18-year-old son was arrested for
selling drugs from her car. Although she was transferred to
another unit of the United States Attorney's office, her property
was never taken, and some defense lawyers complained that she was
afforded more compassionate treatment than those whom she had
prosecuted.

Debate on Need for Safeguards

     Supporters of the widespread use of forfeiture laws say it
is a splendid turn that the fortunes of criminals are being used
to combat crimes. And the proceeds have been a boon to state and
local governments, which share in bounties they help collect.
Since 1986, more than $1 billion has ben transferred to more than
3,000 state and local law-enforcement agencies.

     But critics say the heavy reliance on this money has had a
corrosive effect on law enforcement. "Forfeiture has become an
institutionalized part of Government," said David B. Smith, a
former Federal prosecutor who has written a book on asset
seizures. "Once anticipated forfeitures get earmarked for certain
budgets, they become hard to stop, regardless of the quality of
the cases."

     Indeed, internal memorandums that have recently come to
light suggest that the need to meet a budget target has sometimes
been at least as important to the Justice Department as fighting
crime. In August 1990, Attorney General Dick Thornburgh warned
all Federal prosecutors that the department was far short of its
projection of $470 million in forfeiture deposits and that there
were only three months remaining in fiscal year 1990.

     "We must significantly increase production to reach our
budget target," the memorandum said. "Failure to achieve the $470
million projection would expose the department's forfeiture
program to criticism and undermine confidence in our budget
projections. Every effort must be made to increase forfeiture
income during the remaining three months."

     The year before, the acting Deputy Attorney General, Edward
S. G. Dennis Jr., had sent a similar warning. "If inadequate
forfeiture resources are available  to achieve the above goal,
you will be expected to divert personnel from other activities or
to seek assistance from other U.S. Attorneys' offices, the
criminal division, and the executive office for United States
Attorneys," Mr. Dennis wrote.

     Carey H. Copeland, director of the Justice Department's
executive office for asset forfeiture, said the notification was
not intended to encourage prosecutors to bring new cases as much
as to wrap up existing ones quickly.

     "We call it squeezing the pipeline," he said.

     But former Justice Department officials said that at times,
budget concerns sometimes played too great a role in setting
policy about which cases to bring.

     "We had a situation in which the desire to deposit money
into the forfeiture fund became the reason for being of
forfeiture, eclipsing in certain measure the desire to effect
fair enforcement of the laws as a matter of pure law enforcement
objectives, said Michael Zeldin, a former Justice Department
official who headed the asset forfeiture office, at a recent
panel discussion on the subject. "The intelligent thing to have
done would have been to pick your cases carefully and not
overreach."

     Myles Malman, a former Federal prosecutor from Florida,
said: "U.S. Attorney's offices are recognized positively by the
amount of assets they seize. There is nothing inherently wrong
with rewarding people for the assets they seize. But there has to
be clear communication that they shouldn't sacrifice good
judgment and conscionability for statistics. The system is
subject to abuse."

Some Changes are Under Way

     Prosecutors say asset forfeiture will continue to be one of
the most significant ways of penalizing criminals.

     "We feel, quite frankly, that we have been getting a bad
press and that it is largely a successful program," said Mr.
Copeland, of the office for asset forfeiture.

     Still, Mr. Copeland and other officials say that changes
will be made soon to minimize the possibility of abusive cases.
While the officials describe these adjustments in prosecutions as
fine-tuning, lawmakers are trying to make more significant
changes.

     Both Mr. Hyde and Mr. Conyers are drawing up bills that
would shift the burden of proof for asset seizures onto the
Government, a move that would significantly reduce the number of
forfeitures. Mr. Conyers's would also make forfeiture possible
only after criminal convictions.

     "People are beginning to ask questions," Mr. Conyers said.
"And the new Administration has sent out signals that they are
more sensitive to constitutional rights and civil liberties."