Forfeiture Laws. What's the problem?

[Hamlet]

This thread raised issues that, as the moderator warned, was more suited to Great Debates than General Questions. So here we are. Suppose you decide to go into business as a drug dealer, say marijuana. So you set up your house to grow your marijuana. You get grow lights, water supply, seeds, etc. and use your house for a couple years to grow, package, and sell marijuana. The police, through information from buyers and from some stray plants found outside your house, get a warrant and search your house, and find your marijuana grow. They decide to institute forfeiture proceedings against your grow lights and your house, because they were used in the facilitation of a crime. After due process of law, the Court forfeits both of them to the State, who then destroy the lights and sell the house for $50,000.

I don’t see a problem with this, and it is most certainly Constitutional. Forfeiture laws have been around since the inception of the Constitution. Ships, illegally imported goods, and, later, illegal distilleries have all been subject to forfeiture. The basic idea behind them is that the goods being sought to be forfeited have been used to facilitate crimes, and, thus, have been misused. Other rationales given are to remove the property from circulation (mostly forfeited guns), reimbursing the Government for investigation and regulation costs, and as a deterrent to misuse of property.

I think forfeiture laws are clearly Constitutional, and are, in general, a good way to protect the public, help recoup money for the Government and for aiding in deterring crime. Of course, as with any law, there are examples of the laws misuse, but, by and large, I think these are the exception rather than the rule.

Why does anyone feel that forfeiture law is either a) Unconstitutional or b) Wrong? Any arguments?

[Blalron]

Why does anyone feel that forfeiture law is either a) Unconstitutional or b) Wrong? Any arguments?

Well, for one thing, you only need “probable cause” to confiscate somebody out of house and home, as opposed to “beyond a reasonable doubt” to imprison them. The burden of proof is much lower.

Another problem with Asset Forfeiture laws is that they simply take things too far and can harm innocent people. Take for example the 5-4 Supreme Court decision, BENNIS v. MICHIGAN.

Petitioner was a joint owner, with her husband, of an automobile in which her husband engaged in sexual activity with a prostitute. In declaring the automobile forfeit as a public nuisance under Michigan’s statutory abatement scheme, the trial court permitted no offset for petitioner’s interest, notwithstanding her lack of knowledge of her husband’s activity. The Michigan Court of Appeals reversed, but was in turn reversed by the State Supreme Court, which concluded, inter alia, that Michigan’s failure to provide an innocent-owner defense was without federal constitutional consequence under this Court’s decisions.

Held:

The forfeiture order did not offend the Due Process Clause of the Fourteenth Amendment or the Takings Clause of the Fifth Amendment. Pp. 4-12.

[IzzyR]

I would imagine it is constitutional, and even if it is not I’m not going to argue about it, since I don’t know anything about the subject.

As for right and wrong, I would support forfeiture laws where the sole or primary use of the object was for crimes, as is the case in all the historical examples that you cited. I don’t support them in the case of things whose primary use is legal but which were used in a crime on a one-time or incidental basis.

So in the case at hand I would support seizing the grow lights but not the house. And I would oppose seizing the guy’s car.

[Mojo]

*Originally posted by Blalron *
Well, for one thing, you only need “probable cause” to confiscate somebody out of house and home, as opposed to “beyond a reasonable doubt” to imprison them. The burden of proof is much lower.

I’ll add one thing to what Blalron said- In the criminal case, the burden of proof is on the government, who has to prove their case beyond a reasonable doubt. In the civil forfeiture case the burden is on the property owner to show with a preponderance of the evidence that the property was not subject to forfeiture. There are plenty of cases where the defendant has been found not guilty or charges have been dropped but the property remained confiscated.

I’m strongly against forfeiture laws except in “sole purpose” cases. Property forfeiture for something like soliciting a prostitute or just possession seems too much like government-approved theft for my tastes.

[sailor]

Forfeiture laws are wrong and should not be considered constitutional. A forfeiture is not imposed by a court as a penalty after due process of law, in which case I would have no problem with it. A forfeiture is a legal fiction where the executive takes your property without sufficient guarantees. You can be exonerated of any crime in court and still not get your peoperty back. At least now YOU have to sue the government to get it back. It is an abomination.

You can be the owner of a boat or car and invite some people on board and if someone is carrying drugs, even without your knowledge, you can have your boat or car or house forfeited even though you are not at fault. Whatever the legal fiction which pretends forfeitures are not punishment in fact they are and forfeiture laws deny the principle that no punishment can be imposed without due process of law. It is wrong and should be abolished.

[toadspittle]

Some property items are more relevant than others. Taking away the car of a convicted drunk driver? Pretty relevant (i.e., used in the direct commission of the crime being prosecuted). Taking away the car of someone whose house was raided for pot growing? Less relevant. The drugs were not being transported in the car at the time of the crime (if they were, then it’s more relevant).

Unfortunately, the big problem with forfeiture laws is that they are often not dependent upon a conviction. That is, you get charged with a crime, they seize your property, you are acquitted of the crime … and the cops STILL don’t give you your property back. (Drunk Driving laws in NY work this way–convicted or not, you almost always lose your car.) This is unlawful seizure, plain and simple, IMO, and unconstitutional.

The other thing, though, is when does forfeiture become cruel and unusual punishment? If a crime comes with, say, a $10,000 fine, but you seize the person’s house, too, then you have effectively said that this minor crime is in fact worthy of a $200,000 (or whatever) fine.

[stpauler]

I’m on the side of abolishing forfeiture laws.

The ACLU had this to say a while back about Oakland, CA’s specific laws in 2000:

Punishment without conviction. Under the Ordinance, a vehicle can be seized and sold without anyone being convicted, or even arrested, for the underlying criminal offense. In fact, the eventual dismissal or even acquittal of the criminal charge does not result in the return of the vehicle._
No presumption of innocence. The bedrock principle of our justice system – that persons accused of crime are innocent until proven guilty – is violated by this Ordinance. If you are accused of buying drugs or soliciting a prostitute, your car can be seized by the police without a warrant or any prior judicial hearing. Once your car is seized, the burden is on the owner to get back the car back, even if the owner had no knowledge that it was used for illegal activity. This disregard for the norms of our justice system would continue in the courts, where the traditional requirements of a right to a jury trial and that the government prove its case beyond a reasonable doubt are denied under the Ordinance._
Punishment of the innocent. Under federal and state forfeiture laws, the vehicles of innocent owners that are used for illegal purposes without their knowledge or consent are not subject to forfeiture. In Oakland, there is no such “innocent owner” defense. Loaning your car to your teenager or your spouse is sufficient grounds to be subjected to government confiscation and loss of title if it is used for illegal purposes. A family could lose its only car, even if it were needed for transportation to school or jobs._
Disproportionate punishment. The United States Supreme Court has held that the Eighth Amendment’s prohibition against excessive fines applies to civil forfeitures where the property forfeited is grossly disproportional to the gravity of the offense. The forfeiture of a vehicle based on the purchase of a small amount of marijuana (an offense with a maximum fine of $100) constitutes disproportionate punishment, particularly if the vehicle owner was innocent of any involvement in the illegal activity._
Conflict with state law. The California Legislature recognized that forfeiture laws can have a “harsh effect on property owners” (Health & Saf. Code, sec 11469(j)) and passed a law requiring a conviction for the underlying offense. State law also provides a defense for innocent owners and an exemption if the vehicle is a family’s only car. As all of these protections are disregarded in the Oakland Ordinance, the ACLU brought a facial challenge to the ordinance arguing that it is in conflict with, and therefore preempted by, state law. The Court of Appeal rejected this argument, ruling that Oakland was entitled to adopt its broader forfeiture scheme (Horton v. Oakland, 82 Cal. App. 4th 580 (2000).

I think those specifically represent some good arguments against forfeiture/seizure even if they are on only a local level.

Here’s a good example of also the ineptitude of the seized vehicles and the further problems that this could create:
Hidden Drugs Plague U.S. Auto Auctions

Under the back seat, the mechanic found a hidden compartment, where Rodriguez says he was shocked to find 33 pounds of marijuana. He immediately called police, who in turn, put him in jail.

[lost4life]

It makes sense with an example like yours where someone is a major dealer for an extended period of time. It sounds like a good idea. However, it applies to everyone and often is abused by authorities to fill their coffers. A lady I met was a perfect example. She sold a house on land contract to a family. Their teenage son grew a few pot plants in the backyard (it was a few acres). Nothing major, just 2 or 3 plants. Pot was found, house was confiscated, lady is out of a house because of the land contract deal (The people on contract aren’t going to pay for house they can’t live in, the owner can’t repossess because the government took it). I hate to say that I don’t know how this story turned out.

Another example was from 60 Minutes (or similar). A guy has a flight service and flies people in a private jet. One passenger was transferring drug money. Money and plane are confiscated. Person with money is never charged, plane is not returned. This guy lost a jet and there never were any drugs on it!

Just imagine if you gave a friend a ride. He brings another friend who , unknown to you, has a large quantity of pot with him. You get stopped, car gets confiscated, even if it’s not your car and you don’t get charged.

Of course, the local cops who took the car usually get to keep it or sell it.

[Hamlet]

*Originally posted by Blalron *
Well, for one thing, you only need “probable cause” to confiscate somebody out of house and home, as opposed to “beyond a reasonable doubt” to imprison them. The burden of proof is much lower.

I think you may be wrong in this assertion. In U.S. v. Good, the Supreme Court ruled that the Due Process Clause requires prior notice and an opportunity for hearing in cases involving the seizure of homes.

*Originally posted by Blalron *
**Another problem with Asset Forfeiture laws is that they simply take things too far and can harm innocent people. Take for example the 5-4 Supreme Court decision, BENNIS v. MICHIGAN. **

I tend to agree with you that there should be an innocent owner’s defense available in some forfeiture cases. Although the car was used to facilitate the crime in Bennis, the fact that the car was co-owned by the wife does give me some hesitation, but like SCOTUS I think it’s not Constitutionally required.

[Hamlet]

*Originally posted by IzzyR *
**I would imagine it is constitutional, and even if it is not I’m not going to argue about it, since I don’t know anything about the subject.

As for right and wrong, I would support forfeiture laws where the sole or primary use of the object was for crimes, as is the case in all the historical examples that you cited. I don’t support them in the case of things whose primary use is legal but which were used in a crime on a one-time or incidental basis.

So in the case at hand I would support seizing the grow lights but not the house. And I would oppose seizing the guy’s car. **

But grow lights definitely also have a non-illegal usage. And if we add to my example that the guy didn’t live at the house and just used it to grow marijuana, it wouldn’t be a problem for you. The Courts have tried to avoid having to make these kinds of detailed determinations by allowing the forfeiture of objects based on only one offense, i/e money used in a drug deal or guns in a bank robbery. The fact the item is used only once to facilitate the crime seems to be enough for me. As long as the forfeiture is proportional to the offense.

I think those are the two things that should be considered more in these determinations, the innocent owners and the proportionality of the forfeiture.

*Originally posted by Mojo *
I’m strongly against forfeiture laws except in “sole purpose” cases. Property forfeiture for something like soliciting a prostitute or just possession seems too much like government-approved theft for my tastes.

The problem is there is next to nothing that has a “sole” criminal purpose outside of obvious contraband like drugs. Guns, illegal gambling machines, Leer jets loaded with coke, all have some kind of legitimate purpose and use. Requiring “sole purpose” would make the forfeiture laws paper tigers.

[Hamlet]

*Originally posted by sailor *
Forfeiture laws are wrong and should not be considered constitutional. A forfeiture is not imposed by a court as a penalty after due process of law, in which case I would have no problem with it. A forfeiture is a legal fiction where the executive takes your property without sufficient guarantees. You can be exonerated of any crime in court and still not get your peoperty back. At least now YOU have to sue the government to get it back. It is an abomination.

Just to be clear, are you saying that you wouldn’t support forfeiture laws at all, or that you think there are insufficient safeguards currently? I just want to make sure I understand your point of view.

*Originally posted by sailor *
You can be the owner of a boat or car and invite some people on board and if someone is carrying drugs, even without your knowledge, you can have your boat or car or house forfeited even though you are not at fault.[

I highly doubt this would happen. But I agree that, in some cases, there should be an available innocent owner’s defense. For example, if your car is stolen and the mope who stole it uses it to sell drugs, I think you should be entitled to your car back.

*Originally posted by sailor *
**Whatever the legal fiction which pretends forfeitures are not punishment in fact they are and forfeiture laws deny the principle that no punishment can be imposed without due process of law. It is wrong and should be abolished. **

I think you are wrong on this too. There is a due process of law required, it is just at a lower standard than in a criminal action.

Originally posted by toadspittle
**This is unlawful seizure, plain and simple, IMO, and unconstitutional. **

It is a lower burden of proof in the civil proceeding. Oftentimes the State may not be able to meet it’s burden of beyond a reasonable doubt, but it can at a forfeiture hearing.

stpauler and others have raised the issue of the lower burdens the government faces in forfeiture proceedings. Again, I just want to be clear whether you advocate a change in the laws to increase the burden of proof or a revocation of the laws altogether. The arguments put forth by the ACLU seem to simply that the burden is too low, rather than there shouldn’t be forfeitures.

[IzzyR]

*Originally posted by Hamlet *
The Courts have tried to avoid having to make these kinds of detailed determinations by allowing the forfeiture of objects based on only one offense, i/e money used in a drug deal or guns in a bank robbery.

If this is true it would be irksome in its own right. “We don’t want to have to go to too much bother, so we’ll just let everyone seize everything”. I’d like to see the courts make an effort to do the right thing - that’s what they are paid for.

I think those are the two things that should be considered more in these determinations, the innocent owners and the proportionality of the forfeiture.

Well I can’t think of a case where seizing something that was primarily used for crime would be disproportionate. And innocent owner is kind of a no-brainer. (Also irrelevant the way I see it. If the guy allowed the use of his possession for criminal acts he’s not innocent. If he didn’t know about or tried to object, but it still had a usage that was primarily criminal, then it was stolen from him - I would imagine he would beat the rap even under current laws).

[Blalron]

*Originally posted by Hamlet *
**The problem is there is next to nothing that has a “sole” criminal purpose outside of obvious contraband like drugs. Guns, illegal gambling machines, Leer jets loaded with coke, all have some kind of legitimate purpose and use. Requiring “sole purpose” would make the forfeiture laws paper tigers. **

There’s a difference between property being instrumental to the offense, and being merely the location where the offense occurred.

If Bennis had brought the prostitute to his house instead of his car, could the authorities confiscate his house? Where do we draw the lines on proportionality? Is the penalty of taking your car “proportionate” to the offense of hiring a prostitute?

[erislover]

<i>The problem is there is next to nothing that has a “sole” criminal purpose outside of obvious contraband like drugs.</i>

Like Blalron said, I think this line isn’t quite so murky. If I am accused of murder, and part of this accusation was that I shot someone, if I am convicted then, in principle, the gun has been a part of the criminal proceedings beyond a reasonable doubt, and where my criminal tool goes, so goes my nation.

If I shot someone in my house, then what does the house really have to do with the murder? The accusation is not that it was illegal to shoot someone in a house: it is illegal to shoot someone anywhere!

So it could go with drug use. Or prostitution. If I am charged with a crime, then as teh state presents its proof it will construct a scene. If this scene is compelling, then those impliments are, basically, facts of the case. But the distinction between impliment and accident seems clearer to me than the shadow you seem to cast over it, Hamlet. What we need to ask is: could this crime have been committed any other way? Can I shoot a person without a gun? —no, hence the gun is instrumental. Can I screw a prostitute in other places than a car? —yes, hence the car is ultimately irrelevent.

But since I’m not a lawyer or involved with law, perhaps I am not looking at the issue quite right. If my examples are contrived, or convenient but not standard, please do correct me.

[Mtgman]

*Originally posted by Hamlet *
I highly doubt this would happen. But I agree that, in some cases, there should be an available innocent owner’s defense.

Kevin Hogan and a crew of three headed for Alaska in a 140,000 fishing boat he had just purchased in Washington. The boat developed engine problems along the route and was forced to stop briefly in Canada for repairs. The Canadian stop was reported to customs agents in Ketchikan,[Alaska] who searched the boat. The search revealed that one of Hogan's three crew members had 1.7 grams of marijuana in his jacket. Customs officials acknowledged that Hogan knew nothing about the marijuana aboard his boat, the Hold Tight. Under the "Zero Tolerance" program initiated less than two months earlier, even small amounts of drugs could result in arrests and forfeitures of property. Customs agents decided to seize Hogan's boat. Hogan had planned to use the boat during Alaska's twenty-four hour halibut season later that month. The halibut catch could have netted Hogan the 40,000 he needed to pay the mortgage on the Hold Tight. Hogan said as a result of the seizure, “I stand to lose it all in this deal,” referring to everything for which he had worked during the prior fifteen years. In Hogan’s hometown of Homer, Alaska, more than 1,000 people signed petitions supporting Hogan. The city council passed a resolution urging that Customs officials show “some sense of proportionality” in the Hogan case.

The Customs Service expressed its position in a letter written by John Elkins, acting director of the Service’s regulatory procedures and penalties division in Washington, D.C., to the Customs Service’s Anchorage office. Elkins said that it is not enough to warn crew members of the drug program, as Hogan said he had done. Elkins contended that Hogan was negligent in not detecting the marijuana: “It is our view that Kevin Hogan was, as owner and master, responsible for the actions of crew members.”

Source

I think Zero-Tolerance policies have caused most of the current problems with forefeiture laws. Zero tolerance laws have really lowered the burden of proof the state has to show to seize property. I disagree with zero-tolerance laws on principle, just for the record.

Enjoy,
Steven

[Hamlet]

*Originally posted by Blalron *
**There’s a difference between property being instrumental to the offense, and being merely the location where the offense occurred.

If Bennis had brought the prostitute to his house instead of his car, could the authorities confiscate his house? Where do we draw the lines on proportionality? Is the penalty of taking your car “proportionate” to the offense of hiring a prostitute? **

Oh, I agree. There must be a showing that the item seized was an instrumentality or proceed of the crime before it can be forfeited. In my example, the house isn’t just the place where the crime happened, it was instrumental to the growing and providing cover for the crime. In Bennis’ case, I don’t think the issue of instumentality was even addressed at SCOTUS. However, The Michigan Supreme Court stated:

John Bennis was arrested for gross indecency on the evening of October 3, 1988. On that evening, Detroit police officers Jacob Anthony and John Howe set up surveillance after they witnessed a woman “flagging” [FN2] passing vehicles on the corner of Eight Mile and Sheffield. The woman was later identified as Kathy Polarchio. The officers next observed a 1977 Pontiac, driven by a man, later identified as John Bennis, turn onto Sheffield and stop near Ms. Polarchio, who approached and entered the passenger side of the Pontiac. The officers followed the Bennis vehicle, which proceeded a block, made a U-turn, and stopped. Surveillance continued until the officers noticed Ms. Polarchio’s head disappear toward the driver’s side of the Pontiac. The officers immediately approached the Bennis vehicle, shined a flashlight into the front seat, and witnessed Ms. Polarchio performing an act of fellatio on Mr. Bennis.

They went on to find that the action and the use of the car was an abateable nuisance. I only bring this up because I’ve always wanted to quote a State Supreme Court saying “Fellatio.” And to show their rationale.

[sailor]

Taking your property is a punishment, legal fictions notwithstanding, and the people should be assured that before being punished the government has proven their guilt beyond a reasonable doubt. If the government cannot do that then they have no right to punish you. The fact is that you can be declared innocent by the courts or never even charged and lose your property. It should be the burden of the government to prove your guilt and then the punishment should be adjudicated by the court according to law.

This idea that they just grab whatever they can get without any reasonable burden of proof and without limit or proportionality is ridiculous.

I agree that “zero tolerance” is stupid. Your kid sells drugs out of your house and you lose your house. But if he murders three people in the house, that’s ok, the house is safe. Are we saying that selling drugs is worse than murdering three people?

And they don’t care whether the car they confiscate from the John belongs to him or to his friend who lent it to him not even knowing where he was going. But the way the law is it has to be that way because they are not punishing anybody, rather they are administrative proceedings against the car itself :rolleyes:

These laws are a carryover from the middle ages and ought to be abolished. There is a reason for “innocent until proven guilty beyond a reasonable doubt” and forfeiture laws are just a way of getting around that.