Source: Wisconsin State Journal (WI) Author: Dee J. Hall, Wisconsin State Journal Contact: Website: http://www.madison.com/ Pubdate: Tue, 23 Jun 1998 Note: Mail LTEs to: Editor, Wisconsin State Journal, POB 8058, Madison, WI 53708 THE ABUSES OF PROPERTY SEIZURE LAW What to do with money from sale of drug dealers' assets? Crack down on drug dealers by seizing their cars, their homes, their cash. It's the type of policy that most citizens -- and any wise politician -- could support. But what happens when the drive to get rid of drugs begins to run over innocent people, like the Tennessee landscaper whose money for buying shrubs was seized by police at the airport because he fit the ``profile'' of a drug dealer? Or the charter pilot from Nevada who unknowingly gave a drug dealer a lift and ended up losing his business and tens of thousands of dollars in legal fees trying to get his airplane back? It's these real-life stories that prompted Republican U.S. Rep. Henry Hyde of Illinois to introduce the Civil Asset Forfeiture Reform Act of 1997. The bill, H.B. 1965, is opposed by the Clinton Administration and law-enforcement groups who fear the changes could cripple their ability to seize drug assets. ``Civil asset forfeiture laws promote the bedrock principle that no person should profit from criminal activity,'' said U.S. Rep. Gerald Solomon, R-N.Y., a leading opponent of H.B. 1965. ``Seizing expensive cars and luxurious homes from drug traffickers not only advances the rule of law, but also sends a powerful message that crime will not pay.'' But the push to change the laws enjoys a surprising base of support, including Republicans, Democrats and an eclectic constituency ranging from the American Civil Liberties Union to the National Rifle Association. Around here, defense attorneys say the system is ripe for abuse and should be overhauled. They tell of clients who faced the loss of their homes, cars and businesses even though they got little or no jail time. Local police and the U.S. Attorney's office say they apply the law fairly, and changing it would weaken what is now a very effective deterrent to crime. Federal asset forfeiture ``is hurting the drug business in a very good way, from our perspective,'' said Lt. William Housley, head of the Dane County Narcotics and Gang Task Force. ``It's a very, very effective system.'' The effort to reform the laws goes back to 1996, when Hyde and U.S. Rep. John Conyers, D-Mich., held hearings on civil asset forfeiture. What they heard ``appalled'' them. ``Believe it or not, federal officials have the power to seize your home, your car, your business and your bank account -- all without indictment, hearing or trial,'' Hyde said in a letter to congressional colleagues in March urging passage of the bill. Although the federal government has been allowed to seize assets for more than two centuries, it's only in the past 14 years that the practice has taken off. In 1984, Congress passed the Comprehensive Crime Control Act, which beefed up the nation's asset-forfeiture system by allowing drug money and ``drug-related assets'' to be funneled into the police agencies that seize them. ``The federal government is taking in hundreds of millions of dollars a year in proceeds from cash and property used in criminal activities,'' Hyde said. ``Unfortunately, it has become all too apparent in recent years that those civil asset forfeiture laws are sometimes being used in terribly unjust ways, depriving innocent citizens of their property without due process.'' Local police get much of the money Federal law-enforcement officers like the asset-forfeiture laws for obvious reasons -- they provide a deterrent to crime by hitting criminals where it hurts, in the pocketbook. And money from the seizures helps pay for efforts to get more criminals off the streets. ``It became clear to Congress that there was a financial benefit to committing some types of crimes and the small amount of incarceration was not enough of a deterrent,'' said Peggy Lautenschlager, U.S. attorney for the Western District of Wisconsin, which includes Dane County. Fueling the increase in seizures was the ``equitable sharing'' provision of the 1984 law, which allowed local police to ``federalize'' their asset forfeitures -- even if no federal law officers are involved. Any proceeds from these seizures are split 80-20 by the local police agency and the U.S. Justice Department, which handles the forfeiture actions in court. Organizations such as the Dane County narcotics task force use the money to buy drug-sniffing dogs, undercover vehicles and sophisticated communications equipment, as well to pay the office rent and phone bills, Housley said. Seized vehicles either are sold or used for undercover drug buys. Last year, the task force got about $125,000 from seized assets, Housley said. That's a small fraction of the task force's $2.4 million budget. But when you consider that $2.2 million is eaten up by salaries, asset forfeiture money provides important discretionary funds, he said. ``A lot of the tools of our trade we wouldn't be able to afford out of tax dollars,'' Housley said. ``We would not be nearly as effective if we didn't have asset forfeiture money.'' Wisconsin also has a law allowing police to seize assets, with up to 50 percent of the proceeds to pay for the cost of investigation and 50 percent to be sent to a state school fund. If it's cash, 100 percent is supposed to be surrendered to the fund, under state law. Because it is more lucrative for the drug task force, Housley said his agency uses the federal seizure law in nearly every case. The practice is quite routine, according to two law professors who wrote a blistering critique earlier this year of the asset-forfeiture system called, ``Policing for Profit: The Drug War's Hidden Economic Agenda.'' ``This law gives police a way to circumvent their own state forfeiture laws, which often require police to share forfeited assets with school boards, libraries, drug education programs or the general fund,'' wrote Eric Blumenson, a professor at Suffolk University Law School, and Eva Nilsen, an associate clinical professor at Boston University School of Law. Bruce Rosen, a Madison criminal defense attorney who has worked on several asset-forfeiture cases, was even more pointed in his criticism: ``The beneficiaries of this (money) are supposed to be our children's education, and hopefully it'll eventually go to lower our taxes. They (the federal government) are taking the money and laundering it back to the cops for the sole purpose of circumventing this law.'' Proving property is `innocent' Other areas of asset forfeiture are equally troubling to critics. One of the biggest issues is burden of proof. Under current laws, assets can be seized if there's ``probable cause'' to think they were purchased with illegal money or used for illegal activity. It's then up to the suspect to prove that his or her property doesn't fall into those categories. Suspects also must post a bond equal to 10 percent of the value of the seized property in order to contest the seizure. Forcing people to prove that their property is ``innocent'' is an ``egregious deviation from the American commitment to the rule of law,'' said David B. Smith of the National Association of Criminal Defense Lawyers, considered a national expert in asset forfeiture. ``It is amazing that a statutory burden of proof so out of line with current notions of due process would have survived this long.'' But Housley, of the Dane County task force, said the process is less burdensome than it sounds. ``For most of us, it wouldn't be difficult to show where we got the money to buy our house or where we got the money to buy a car,'' he said. Most of us, he said, wouldn't be able to routinely make $6,500 deposits if our paycheck was just $1,000. As for seizing cash, Housley said, ``Do you carry $30,000 around in your car trunk? No. No one does. The only people who carry around $30,000 in cash are those who are engaged in illegal activity and who need to hide the money. ``Those are the people -- and their attorneys,'' Housley said, ``who are behind this impetus to make this a more difficult system for the government.'' Potential conflict Another aspect of forfeiture that concerns critics is the potentially corrupting effect of allowing police to keep the assets they seize. Last year, the NBC news show ``Dateline'' won an Investigative Reporters and Editors' award for exposing the practice of Louisiana sheriff's deputies' stopping motorists along Interstate 10 with little or no cause and seizing cars and cash under the state's forfeiture laws. The deputies created a slush fund with the money, ``Dateline'' found, paying for a ski trip and thousands of dollars worth of pizza and doughnuts. Hundreds of thousands of dollars were unaccounted for. Nothing of that sort has been alleged in Dane County. And Hyde has not proposed changing this aspect of the law, saying ``the money is being plowed back into law enforcement, something I find wholly proper.'' Nonetheless, one local attorney said allowing the police to earn their own money through forfeitures is a ``classic formula for abuse.'' Researchers Blumenson and Nilsen agree, saying that requiring police to return money to a general fund with legislative oversight would ``cure the forfeiture law of its most corrupting effects.'' Said Jack Priester, a Madison criminal defense attorney with experience in asset forfeiture: ``It doesn't look good for the police to be taking money to buy things for themselves. I literally call it a `chunk of the action.' I think it's inappropriate.'' Defense attorney Rosen pointed out that separating the police from the profits of their work was precisely what Wisconsin lawmakers had in mind when they mandated in 1971 that most of the money should benefit education. ``The last thing they wanted was to put the police in the position of having a conflict of interest and being recipients of the very money they're grabbing,'' Rosen said. Housley countered that his agents are simply too busy trying to catch drug dealers, gamblers and other criminals to worry about what assets they have. And he said it would be highly unusual for someone who is totally innocent to have their property seized. ``We don't have time to go out there and go from wealthy person to wealthy person seeing whether they're involved in illegal enterprises,'' Housley said. ``That's a fear tactic that sells very well to the public. The people who are trying to get this passed need to appeal to the public. ``The illegal enterprises are lucrative enough that if you go after them,'' he said, ``you will find assets.'' - --- Checked-by: Richard Lake