Pubdate: Wed, 14 Oct 2009
Source: Wall Street Journal (US)
Copyright: 2009 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Jess Bravin
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

JUSTICES WEIGH RULES ON RECOVERING SEIZED ASSETS

WASHINGTON -- Every year, police agencies seize more than $1 billion 
of cars, cash and other goods linked to drug crimes. The Supreme 
Court will hear arguments Wednesday on how hard it should be for 
owners to try to recover that property.

Police typically get to keep much of what they seize, although owners 
can fight forfeiture in court. On Wednesday, the central issue will 
be whether owners are entitled to a prompt, informal hearing to argue 
that they should get their property back while waiting for a formal 
forfeiture proceeding that could be scheduled months or years in the 
future. At present, some states impound the property during that lag 
time and provide owners no recourse. Critics say many innocent owners 
just give up during that period, and states then are free to sell 
their cars and other items.

The justices will hear a case from Chicago involving six different 
property owners, including Tyhesha Brunston, who loaned her Chevrolet 
Impala to a childhood friend who was later arrested in the car and 
charged with possessing drugs.

"Words can't describe how mad I was" at him, says Ms. Brunston, 30 
years old. "He was not supposed to be smoking marijuana in my car."

Illinois law allows "innocent owners" to reclaim seized property. But 
in practice they may have to wait months -- or in Ms. Brunston's 
case, three years -- before recovering their cars.

Last year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled 
that the Constitution requires that owners get a more timely chance 
to seek return of their property.

The appeals court ordered a trial judge to work with city officials 
and lawyers representing Ms. Brunston and other owners of seized 
property to fashion "some sort of mechanism" to test whether seizures 
were valid.

"The hearing should be prompt but need not be formal," the court 
said. A neutral judge or hearing officer would decide whether the 
owner got possession of the property during the lengthy period before 
the more formal forfeiture proceeding was held -- something like a 
property equivalent of a bail hearing before trial.

The Cook County state's attorney appealed the decision. The Justice 
Department, 20 states and several organizations representing state 
and local government have backed the appeal.

"It's really about government bullying," said Craig Futterman, a 
University of Chicago law professor representing Ms. Brunston and 
other owners in the case.

For law enforcement, "forfeiture has become a multibillion-dollar 
business across the nation," he said, noting that Chicago netted 
nearly $14 million through asset forfeitures in 2008. "With those 
powerful interests in taking and seizing and keeping property, there 
needs to be some kind of check," he said.

A Justice Department fund that receives proceeds from forfeitures of 
cash and property across the country received $1.2 billion in cash 
and cash equivalents in the fiscal year ended Sept. 30, 2008, down 
from $1.4 billion in the previous fiscal year.

In 2000, then-U.S. District Judge Michael Mukasey rejected a 
challenge to New York City's forfeiture system, which was similar to 
Chicago's. He found that if police had sufficient reason to arrest a 
suspect, they also were justified in seizing the property pending a 
forfeiture hearing months or years later.

That decision was reversed by Justice Sonia Sotomayor, then a judge 
on the Second Circuit in New York.

"A car or truck is often central to a person's livelihood or daily 
activities," she wrote. The Constitution gives people a right to 
force the city to justify seizures "at an early point...in order to 
minimize any arbitrary or mistaken encroachment upon plaintiffs' use 
and possession of their property."

To comply with the ruling, New York City adopted a system that 
provides owners a hearing within weeks of a seizure. In 2008, the 
city seized 3,166 vehicles, said police spokesman Paul Browne. Of 
those, 2,152 were returned, mostly to people charged with drunken 
driving, after they had undergone treatment for alcoholism. Among the 
others, the city kept 632 vehicles, while 320 remain in dispute, he said.

The rapid scheduling of the hearings gives police leverage with 
defendants, Mr. Browne says. In drunken-driving cases, for example, 
police will often agree to release a vehicle if the driver undergoes 
substance-abuse counseling.

Paul Castiglione, a Cook County assistant state's attorney who will 
defend the Illinois law before the court Wednesday, said that giving 
owners a preliminary hearing to recover their property would 
interfere with law enforcement.

"It would be disruptive in a number of ways," he said. "The police 
would have barely begun their investigation" before having to defend 
the seizure, he said, and may not have been able to locate all the 
people who could claim ownership of the property. Moreover, "it would 
force a duplication of effort, a duplication of the ultimate civil 
forfeiture hearing."

He rejects arguments that police are motivated by the chance to keep 
the property.

"When property is seized, it's not like the government can use it 
right away. It's a car impounded in a lot," he said. "It's never 
going to be turned over till a court says so."

John Worrall, a criminologist at the University of Texas at Dallas 
who has studied drug-forfeiture policies, said it isn't that simple. 
"To say that law enforcement is only in it for the money is silly; 
there are easier ways to get money than going through 
asset-forfeiture proceedings," he said.

On the other hand, Prof. Worrall said, "the money matters." He found 
that 40% of police executives in a 2001 survey said drug-forfeiture 
funds were necessary to their budgets. "With the budget crisis in 
local government, I think we're going to see renewed interest in 
forfeiture," he said.
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MAP posted-by: Richard Lake