Pubdate: Tue, 22 May 2012
Source: Topeka Capital-Journal (KS)
Copyright: 2012 The Topeka Capital-Journal
Author: George Will
Bookmark: (Asset Forfeiture)


TEWKSBURY, Mass. - Russ Caswell, 68, is bewildered. He and his wife, 
Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language.

This town's police department is conniving with the federal 
government to circumvent Massachusetts law - which is less permissive 
than federal law - to seize his livelihood and retirement asset. In 
the lawsuit titled "United States of America vs. 434 Main Street, 
Tewksbury, Massachusetts" the government is suing an inanimate 
object, the motel Caswell's father built in 1955. The U.S. Department 
of Justice intends to seize it, sell it for perhaps $1.5 million and 
give up to 80 percent of that to the Tewksbury Police Department. The 
Caswells have not been charged with a crime. They are being 
persecuted by two governments eager to profit from what is 
antiseptically called the "equitable sharing" of the fruits of civil 
forfeiture, a process of government enrichment often 
indistinguishable from robbery.

Caswell's "budget" motel has seen better days, as when the touring 
Annette Funicello and the Mouseketeers checked in. Now, the motel 
hosts tourists, some workers on extended stays and some elderly 
people who call it home. The 56 rooms rent for $56 a night or $285 a week.

Since 1994, about 30 motel customers have been arrested on drug 
dealing charges. Even if those police figures are accurate - the 
police have a monetary incentive to exaggerate - these 30 episodes 
involved less than five one-hundredths of 1 percent of the 125,000 
rooms Caswell has rented over those more than 6,700 days. Yet this is 
the government's excuse for impoverishing the Caswells by seizing 
this property, which is their only significant source of income and 
all of their retirement security.

The government says the rooms were used to "facilitate" a crime. It 
does not say the Caswells knew or were supposed to know what was 
going on in all their rooms. Civil forfeiture law treats citizens 
worse than criminals, requiring them to prove their innocence - to 
prove they did everything possible to prevent crimes from occurring. 
What counts as possible remains vague. The Caswells installed 
security cameras, they photocopy customers' identifications and 
record their license plates, and turn the information over to the police.

The Caswells are represented by the Institute for Justice. IJ 
explains that civil forfeiture is a proceeding in which property is 
said to have acted wrongly. This was useful long ago against pirates, 
who might be out of reach but whose ill-gotten gains could be seized. 
The Caswells, however, are not pirates.

Rather, they are victims of two piratical governments that, IJ 
argues, are violating the U.S. Constitution twice. They are violating 
the Eighth Amendment, which has been construed to forbid "excessive 
fines" that deprive individuals of their livelihoods. And the federal 
"equitable sharing" program violates the 10th Amendment by vitiating 
state law, thereby enabling Congress to compel the states to adopt 
Congress' policies where states possess a reserved power and primary 
authority - in the definition and enforcement of the criminal law.

A federal drug agent operating in this region roots around in public 
records in search of targets - property with at least $50,000 equity. 
Caswell thinks that if his motel "had a big mortgage, this would not 
be happening."

"Equitable sharing" - the consensual splitting of ill-gotten loot by 
the looters - reeks of the moral hazard that exists in situations in 
which incentives are for perverse behavior..

None of this is surprising to Madisonians, which all sensible 
Americans are. James Madison warned (in Federalist 48) that 
government power "is of an encroaching nature." If unresisted, it 
produces iniquitous sharing of other people's property.
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