The Devil is in the Details: The Forfeiture Example of American ‘Justice’

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by S. Leon Felkins

We cherish a myth that the justice system is the last, best hope for the beleaguered “little guy” in the world of the powerful. No matter what happens, we’ve been told, even the humblest of us can “have our day in court,” be heard and be vindicated, as long as truth and fairness are on our side. . . . A belief in justice-even an erroneous belief-can be the line that separates gentility from riots in the streets. Claire Wolfe, “After the Fall of Justice”, 1998

But to live outside the law, you must be honest. – “Absolutely Sweet Marie”, Bob Dylan

Recently I watched CSPAN during a call-in show wherein the new terrorism bill was discussed. I was exposed to the usual mindless garbage, such as; “I have nothing to hide so I don’t care if they monitor my phone calls”; “If you do get accidentally charged with a crime, then challenge it – the system works”; “Some innocent people may be convicted but it is a small price to pay for making sure the bad guys get put away”.

I ran my phone redialer at full speed, trying my best to get through in order to at least try to correct some of these naive beliefs. It is amazing that in these times when the most cursory examination of the American justice system would reveal that it has been in shambles for at least 40 years, that the majority of the public still believes in such fairy tales.

As an example, consider the issue of “plea bargaining”, which I intend to explore in detail in a future essay. In general, this questionable and abusive practice is supported by the police, the prosecutors and the judges – as we would expect – and is opposed by civil libertarians and most scholars in the legal profession. One wonders where the public might stand on this practice that violates the Constitutional promise of due process and the right to a trial, that incarcerates, penalizes, and takes the property of thousands of innocent (or at least, over charged) people every year. Interestingly, polls show that the public, for the most part, also thinks that “plea bargaining” is bad; but for the wrong reason. The public views “plea bargaining” as just another instance of prosecutors being “soft on crime”.

Implementation details are often contrary to the stated intent, which is usually very general. I remember as a young boy, my mother told me that all you had to do to catch a bird is to sprinkle salt on its tail. At least that is what I thought she said. But upon further reflection, when I got older, I realized that she may have said, “You can catch a bird if you can sprinkle salt on its tail.” This is amazingly similar to the claim of our “dispensers of justice” that “if you are accused, you will suffer no ill consequences if you can convince the justice system that you are innocent”, the difficulties of which I will elaborate on further, below.

A few more simple examples where the details sabotage the stated intention:

  • I bought a watch for $1.98 at Walmarts which claimed to have a life time warranty. Upon opening the package and reading the details, I found that for a warranty claim, I must send in $5 for shipping and handling.
  • The famous story about the wandering but hungry soldier (the version I heard said he was a hobo) that instead of begging for food, offered to share with the small village his pot of rock soup. First he added a few well washed rocks to a pot of boiling water while the local villagers watched with awe. Then he advised that to flavor the soup, a few potatoes, herbs, onions, etc. would really help out. The poor villages obliged. The rest of the story can be found at “The Fable of Stone Soup”.
  • “Buy low, sell high”. Good advice. Now give me the details. For in spite of the many times I have tried to follow that good advice, I seem to still not have the details exactly right.
  • Every programmer knows, the devil is in the details. In the early days of my checkered career, I accepted the opportunity of developing application software packages for small businesses. I often received instructions from my business customers, such as “I want that inventory program to give me the best product at the best price”, or “Make sure my better customers get the best deal”. It was obvious that I could not maximize two results at the same time and that I had to assign “break points” to replace these generalities. Computer software does not handle generalities gracefully.

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One of the best examples of how the “details” contradict the popular meme that American Justice is fair, is in the theft of private property under the modern forfeiture laws.

The forfeiture scam

The modern asset forfeiture scam, so enthusiastically applied by our ever-caring government, really got under way in 1984. The unbelievable horror stories that have been repeatedly told of the actions of our unrestrained government taking and/or destroying property in the billions of dollars brings home a most profound lesson to all of us. And that is, that without external restraint, there is no limit to the cruel abuse the government would impose on its citizens. When the Justice Department tells you that they are no longer so blatantly cruel and out of control with their property seizures as they once were (as they stated in the Cato conference on Forfeiture, May 3, 1999), your next thought should be, “what caused them to back off?” (or did they? See “Court rules feds can take widow’s land” and “[82-year-old Widow's] Home Seized After Son’s Drug Arrest”). I can assure you it was not out of compassion or self-restraint.

After fighting hard for 7 years, Rep. Hyde and his cohorts managed to get a much watered down “forfeiture reform” bill signed into law in 2000. Before we have a party celebrating the return of decency and Constitutional law to America, we should first note a couple of things: 1) The reform bill (Civil Asset Forfeiture Reform Act, “CAFRA”) only applies to a portion of the federal government and not to states at all and 2) There’s no significant reform there anyway.

Let us look at a couple of the claims of reform:

  • The Burden of Proof has now been shifted from the Defendant to the Government Prosecutor

Wait a minute, you say, surely the government never required the accused to prove his/her innocence – why, that’s against our constitution. Welcome to just one little corner of American Justice real estate; for the last 20 years or so, that was exactly the rule that forfeiture cases were tried by. The accused was required to prove a negative, which is impossible according to logicians. So, “what’s wrong with an impossible defense for the accused – we already know he is guilty anyway”, the prosecutors would quickly tell you.

That was changed with the new law. Now the government has the burden of proving “by a preponderance of the evidence” that the property is evil and therefore should belong to the government. While the Justice Department fought this provision with the enthusiasm that one would think their job was about to be cancelled and they would have to obtain honest work, they actually are not really all that concerned. With all the power players on their side – the cops, the prosecutor, the judge – and just you on the other side, if they can’t easily come up with a “preponderance of the evidence”, they would be laughed out of town by their cohorts. After all, what does that mean exactly? Can you pile up the evidence on a balance scale and weigh it? Is some evidence heavier than others? Best not to dig into such troubling philosophical questions.

  • The government will now provide state appointed counsel for the indigent

    Wait a minute again, you say – surely the government . . . let’s don’t go through that again. No, the government not only did not provide counsel for a victim of forfeiture, they were the cause, usually, for the indigent condition of the victim. That is, they took all his property, including all his finances and sometimes what he may have already given to a lawyer, before the forfeiture proceedings. With that, no free counsel was provided. The Constitution does not require it, you see. No the Constitution only requires all these legal niceties that you have been taught about all your life to people; but forfeiture complaints are not against people, but against property. Apparently, the Founding Fathers in their nearly infinite wisdom, never anticipated that in the 1980s, property would suddenly go berserk and start committing heinous crimes right and left. Or at least be accused of it – and therefore no need for protection of its rights was anticipated.

    But now, after the passage of CAFRA, that little accidental mistake has been corrected, right? Well, don’t start counting your little baby chicks just yet – – there may be a rotten egg or two in the clutch. What the lawmakers were so generous in providing is this:

    • According to CAFRA, ” the court may authorize counsel to represent that person with respect to the claim.” While you may be troubled by the “may” word, that is the least of the “gotchas” we have here:
      • The provision only applies if “the person is represented by counsel appointed under section 3006A of this title in connection with a related criminal case.” Oh, I see. If I have done something bad enough that I also have a related criminal case against me, then I get free counsel. But if I should be so inept has to be unworthy of criminal prosecution, or even be innocent, then all deals are off! Makes sense – I guess.
      • The statute fails to mention any source of funding for these “free” lawyers.

    • If “the property subject to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with respect to the claim. ” By now, you should be fairly well educated as to the workings of our geniuses in Congress and should already be saying to yourself, “I wonder who the hell ‘Legal Services Corporation’ (LSC) is and if they know they have this new responsibility.” OK, you got them pegged – according to Brenda Grantland in her book, Asset Forfeiture Defense Manual, LSC is a non-profit organization who does not actually have any attorneys (but they can hire them) and, no, they were not consulted before this bill was signed into law!

  • Protection for “Innocent Owners”

    Now before CAFRA, the forfeiture activities by the government received a lot of bad press because of its radical concept that if property commits a crime or is involved in a crime then it can be forfeited regardless of whether the owner was involved or knew anything about the wayward ways of the property (see “CALERO-TOLEDO v. PEARSON YACHT LEASING CO., 416 U.S. 663 (1974)” and “TINA B. BENNIS, PETITIONER v. MICHIGAN”). Now the “innocent owner” is protected. All that is necessary now for the innocent owner is to hire an expensive lawyer, win the case and all the appeals and they will (probably) get their $700 car back, subject to the following conditions:

    • the victim “did not know of the conduct giving rise to forfeiture; or”
    • “upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.”

    Well, all you wives and children can rest easy now! Surely the government will not take your home if you can show that the drug dealing husband/father said he would beat the hell out of you if you turned him in. Don’t count on it. In the case, “U.S. v. Sixty (60) Acres, More or Less With Improvements, Located in Etowah County, Ala., 727 F.Supp. 1414, N.D.Ala.,1990.”, Judge Acker, in disallowing the wife’s claim of innocence said,

    When [the F.B.I. agent] interviewed Mrs… Ellis [after her husband's arrest], Mrs.. Ellis denied any knowledge of her husband’s current drug dealings but went on to say that she had lived in fear of bodily harm from him. On this point, this court believes that what Mrs.. Ellis told Agent Rasner is true. In other words, if Mrs.. Ellis had undertaken to squeal on her husband or to kick him out of the house as a means of avoiding the possible consequences of [forfeiture], she probably would have placed herself in personal jeopardy. . . . [However,]At some point the obligations of citizenship in a drug-ridden society must overcome spousal loyalty and even spousal intimidation. (emphasis added)

    That quote from Judge William Acker says more about American justice, compassion and understanding, and intelligence of our judges than anything I could ever dream up!

    My advice: don’t count on the “innocent owner” defense to save the family farm if the government decides it wants it.

I think you may already be getting the suspicion that the details may in fact be a little devilish. You’re right but let us see just how bad it is.

Let’s look at the most common object of affection of the government agents, cash.

A Quick Lesson in Civics

In 1844, “Congress enabled the government to utilize a summary forfeiture procedure in cases where the value of the property seized was $100 or less. Act of April 2, 1844, ch. 8, 5 Stat. 653. The purpose of the summary forfeiture procedure was to save the government the time and expense of a judicial condemnation proceeding in cases where the value of the seized property was small.”, according to the court in “U.S. v. U.S. Currency in the Amount of $2,857.00″, 754 F.2d 208.

According to Brenda Grantland, in the recently published book, Asset Forfeiture Defense Manual, page 421, “The cap was raised from $1,000 to $2,500, in 1954; from $2,500 to $10,000 in 1978; from $10,000 to $100,000 in 1984; and to its present cap of $500,000 in 1990.”

I quote this for those of you who insist that no harm can come from “letting the government slip it in just a little”.

Now, according to the government, if the “value of the seized property is small” (see box), there is no need to go to all the expense of having a trial and all that idealistic stuff – you just take the property with an “administrative forfeiture” or as it is sometimes called, a “summary forfeiture”. Now before you start ranting that $500,000 is not all that small around your house, remember that this law was written by the government and to them $500,000 is essentially insignificant.

Let us then say that the government has some how come up with “probable cause” (that is, “at the discretion of police and prosecutors”, see “The Death of Due Process” by Paul Craig Roberts) that your cash ought to be seized. That is the law. They must have “probable cause” or they can’t take your stuff. I will leave as an exercise for the reader to speculate on just how difficult it might be for the police to establish that there is “probable cause” for seizure and convince a judge accordingly if they are really interested in your goods. (Hint: “Many have had cash confiscated because any amount over $100 constitutes “probable cause” for police to infer intent to buy or sell drugs.” – Paul Craig Roberts in “From Blackstone to Bentham: Why Wrongful Conviction Is On The Rise”)

The government then has 60 days to officially notify you that your goods have been “drafted” (and why not? If goods can have suits filed against them for committing crimes, surely they can be “drafted” into service for their country). Of course, there are all kinds of exceptions to this notification requirement, and a major oversight that severely weekens it is: congress forgot to put in any “teeth” to force government compliance. Experience tells us that without “teeth”, the “authorities” are not likely to comply.

Then follows a series of exchanges between the government and the victim of property seizure in which if the government misses a deadline or makes a mistake not much is lost but if the victim is so much as late one second or makes the most minor error in filling out forms properly, his property is forever gone and there is essentially no chance of getting relief. See “R is for Rules” in the article, “Government Attorneys ….. A to Z” to learn more about government justice procedures.

So, you are immediately, from the day your property is seized, faced with the prospect of having to hire a lawyer; for to do otherwise is to risk losing it all without the government having to make any effort to prove guilt. Now here’s the next dilemma; your defense is likely to be expensive – even more than the value of the property they heisted from you. Even though you are innocent of any wrong doing, you suddenly have the burden of major stress and financial loss. And it could go on for years, maybe for life – see “The ‘Money Laundering’ Prosecution of Dr. George Pararas-Carayannis in Hawaii”.

What is the picture we are getting here? The government with its infinite source of funds, almost no compassion or concern about the victims of their actions, and a powerful incentive to feather their own nest, can and will destroy your life whether you are guilty or not! It really doesn’t matter to them. They have nothing at stake financially. They play a deadly game against you with a stack of chips thousands of times bigger than yours, (which in fact came from you and the other citizens – that is, they use your money to harass you!), all the rules in their favor, and essentially no oversight.

Someone said that the playing field is so slanted in the government’s favor, that unless the government prosecutors are actually people of mercy, integrity and honesty, there can be no fairness in the game whatsoever. That requirement makes it extremely improbable that you can win. In the old days, there apparently was some integrity and honesty on the government’s side but it is best not to count on that now.

Proving you’re an innocent owner

Until recently, one of the benefits that the government touted about forfeiture was that by prosecuting the property rather than a person using the property in a crime, at least, someone was punished and the process was very simple compared to the prosecution of the actual perpetrator of a crime. This, of course, caused great hardship on innocent owner’s of property – which didn’t bother the government but did, finally, upset the public. The new reform bill, CAFRA, has made some provision to protect the innocent owner. Unfortunately, consistent with the theme of this essay, the owner of the property still has the costly task of proving his innocence. This is not trivial and the services of a lawyer would be advised!

First one must prove that he is an “owner”. Trivial? Maybe not. The government’s definition of an owner is sort of like its definition of “fresh” with regard to foods (until recently, the government standard allowed producers to freeze chicken as low as 1 degree Fahrenheit and still label it as fresh), it may not jive with what you think an “owner” might be. Without going into all the gory details, I will give just one sentence from the code: an innocent owner must be “a person who was a bona fide purchaser or seller for value”. That means that outright gifts such as the Rolex that Aunt Minnie gave you for Christmas does not qualify as being “owned” by you if the government decides to take it.

As far as defining “innocence”, forget about it. The complexity and vagueness of the definition makes it an issue that the courts will have to decide on. Which, again, means that the accused better hire a really good lawyer, who rarely offer their services cheaply.

A further issue you have to concern yourself with is how did the previous owner obtain the property that you have purchased? In particular, did he obtain it illegally? If you are an old timer, it might cross your mind that how the seller acquired the property is none of your business. Wrong! And you lose if he acquired it illegally. It can be forfeited from you.

But it gets worse. Did the person selling to you subtlely suggest that he may have obtained the property illegally? Did he jokingly hint that he might have acquired it illegally? Did he make a remark that sounded like a joke to you (Like, “Man, I can make you a deal on this property because I practically stole it”)? A couple of years ago a business friend of mine was attempting to sell his property. A man came to him showing an interest. They spent several hours discussing the details one evening over drinks and dinner. What my friend didn’t know was that the potential purchaser was actually a government agent wearing a recording device and the whole setup was a sting. Later in a court hearing, the government alleged that the agent had sometime that evening hinted that the funds that he would use to purchase the property had been obtained illegally. Further, the government said that my business friend indicated that he would sell to this agent.

That claim along with another equally sleazy was used as the basis for seizing my friends business inventory worth nearly $2 million dollars. He never challenged the seizure but instead “plea bargained” to avoid prison time in addition to the forfeiture.

If you don’t break the law, you don’t have to worry

Nonsense!

First off, the difficulty is avoiding breaking the law. According to Paul Craig Roberts (as quoted by Claire Wolfe), there are now over 56,000 single-spaced pages of Federal code and over 134,000 pages of Federal Regulations (which have the force of law) to say nothing of who knows how much state and municipality laws you are subject to. I would say that it is virtually impossible for you to live through a single day without breaking several laws.

Fortunately, the shear numbers make the possibility of their total enforcement impossible. Nevertheless, by having so many laws, it allows the authorities to take action against any citizen if for some reason they decide to. By no means is it necessary for you to be involved in sinister actions against your fellow man for you to be “detained” by the “authorities”.

Are you sure you read the fine print?

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972 (FOOTNOTE 1) and the convention between the United States and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environments concluded November 19, 1976. 16 U.S.C. 0707

The above quote is given as an example of the treachery of the laws one has to deal with in these times. Individuals have been prosecuted for picking up feathers in the forest and using them in an art object. If that much detail in necessary to protect our birds, just imagine what the rest of the statutes must look like!

Conclusion

The primary duty of a prosecutor is to seek justice and to see that those guilty of real crimes are brought to justice. Society sees the ideal prosecutor as a public official who plays the role with most integrity in a judicial ritual designed to determine the truth. The majority of prosecutors are aware that they must work against any tendencies to oppress a defendant with the many resources they have at hand. These resources include the vast finances of the government offices full of clerks and assistants, crime laboratories and government records. They have numerous other powerful instruments they can command against one defendant. Most defendants have none of these resources to use to defend themselves, and often they have little money. It takes a prosecutor with integrity and respect for the law and for others to avoid the tactics of overkill and excess in prosecuting a case. From, “The Epidemic of Prosecutorial Misconduct”, Association of Americans for Constitutional Laws and Justice(AACLJ) Web site.

What I have attempted to show in this essay, by use of the example of just one segment of our laws – asset forfeiture – that to simply receive the attention of the “authorities” can result in unpleasantness for the victim of this attention that is indistinguishable from “punishment”. That is, for an innocent person to defend his/herself against an action by the government can cost thousands of dollars, years of grief, and loss of respect in the community – even if you “win”. But many do not win even if completely innocent by older standards (there are so many current laws that you are most certainly guilty of breaking some of them).

It is estimated that as much as 95 percent of charges are now settled by “plea bargaining”. That many of these cases resulted in conviction of innocents persons is a no-brainer. The scam is that an innocent person has choices such as “if you fight it and force us to go to trial, you will get 15 years. If you plead guilty of a lessor charge, we will let you go in 2 years”. Similar offers are made with the property they have already taken. It is rational for an innocent person to agree to such an offer.

Finally, I quote again Paul Craig Roberts (see “Bring back justice”);

In the United States today, punishment has been separated from guilt and is the likely fate of anyone, innocent or guilty, who has the misfortune to encounter the criminal justice system. Note: A difficulty in writing this paper is what term to use that describes the situation wherein a person has caught the attention of the “authorities”. “Arrest” is not appropriate for it is estimated that 80% of forfeiture victims are never charged with anything. Many of the individuals “detained” as a result of the terrorism acts of September 9, 2001, were never charged. What is the proper term to use when an individual’s freedom or his/her property is taken by the government with or without charges being filed?

Mr. Felkins [send him mail] is a retired former military officer, college professor, and computer systems engineer. He is now an activist in the fight for the reform of the forfeiture laws now plaguing the US and the world. He is presently serving as the Executive Director of F.E.A.R., the forfeiture reform group. In addition, he maintains a web page on Political Philosophy, “A Rational Life” and another on the history of politics, “The Political Almanac.”

© 2001 LewRockwell.com

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