A License to Steal: The Forfeiture of Property.

Designed as a weapon to wield against the economic might of organized crime, the laws of civil forfeiture have instead become a license to steal - a license increasingly used on the small and weak to feather the nests of law enforcement agencies.

Civil forfeiture is based on the curious legal fiction that property can be guilty. Ancient superstitions held that objects could be evil and, if so, should be punished. If a tree's limb fell on a woman or a bull gouged a man the tree or the bull was taken by the sovereign as a form of community atonement. Civil forfeiture has outlived the myth of evil objects because it benefits the state and this raison d'etre is why it is abused. Today, forfeited property is used by the law enforcement agencies that seize it. Levy quotes a Customs Service official, "if the police had, 'a guy with a ton of marijuana and no assets versus a guy with two joints and a Lear jet, I guarantee you they'll bust the guy with the Lear jet.'"

While we have long had criminal forfeiture laws in the U.S., civil forfeiture is a recent development. In criminal forfeiture an individual must first be convicted before the property used in crime or acquired as a result of crime can be seized. In cases brought against organized crime figures the property in question would disappear before a conviction could be gotten and while a few crime bosses might go to jail the economic base of their organization would survive. Law enforcement agencies lobbied for the power to seize the assets of suspected criminals before they could be spirited away. From extensions and revision to the Racketeer Influenced and Corrupt Organizations Act and the Continuing Criminal Enterprise Act emerged in rein civil proceeding, wherein, the suspect property is seized and the owner bears the burden to prove (by a preponderance of evidence) that the property is innocent.

Today, civil forfeiture is being challenged on several constitutional grounds. The courts realize that civil forfeiture is being used to exact punishment for criminal activities but do not extend to the owner of the property all of the protection afforded one accused of a crime. Seizing one's assets greatly reduces access to legal representation and deprives one of the wherewithal to prove the property's innocence and avoid punishment. Shifting the burden of proof to property owners lowers the criminal standard of proof well below a reasonable doubt. In a civil procedure one is not assured of a speedy trial, cannot dismiss evidence discovered in an illegal search, or refuse to testify about the particulars of the case. Legal challenges on each of these grounds are working their way through the courts now.

The book includes many examples of the abuse of forfeiture law that would be fall-down-laughing funny if not for the sad consequences. Customs agents seized an $80 million dollar research vessel owned by the Woods Hole Oceanographic Institution because they found a tiny speck of marijuana in a crewman's shaving kit. A Lear jet owned by an air transport service and a sailboat owned by a company that leases them were seized because passengers had drugs. Money has been seized because it had traces of cocaine on it, even though upwards of ninety percent of the money in circulation shows traces of cocaine. The government has seized a fraternity house, a pet cemetery and the world's largest card casino, which they still manage. Agents have seized as little as $10. Cases include One 1958 Plymouth Sedan v. Pennsylvania (which, presumably, someone wants to win) and United States v. $405,089.23 U.S. Currency (which someone almost surely wants to win).

The shortcoming of the book, as with all works on current events, is that it was outdated before it was published. It is a thorough review up to the end of 1994. If you are interested in more recent developments I suggest you contact Forfeiture Endangers American Rights (FEAR) at http://www.fear.org on the internet.

Philip K. Porter University of South Florida