Seized Property in Crime Cases Causes Concern
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."