Devil is in the Details: The Forfeiture Example of American 'Justice'
S. Leon Felkins
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
to live outside the law, you must be honest. "Absolutely Sweet Marie", Bob
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".
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.
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
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.
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
- 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.
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
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
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.
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.
us look at a couple of the claims of reform:
- The Burden
of Proof has now been shifted from the Defendant to the Government
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.
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.
government will now provide state appointed counsel for the
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.
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
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 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!
for "Innocent Owners"
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:
victim "did not know of the conduct giving rise to forfeiture;
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."
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,
[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.
from Judge William Acker says more about American justice, compassion
and understanding, and intelligence of our judges than anything
I could ever dream up!
don't count on the "innocent owner" defense to save the family
farm if the government
decides it wants it.
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.
look at the most common object of affection of the government agents,
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
Quick Lesson in Civics
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
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
quote this for those of you who insist that no harm
can come from "letting the government slip it in just
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")
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.
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,
Attorneys ..... A to Z" to learn more about government justice
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".
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
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.
you're an innocent owner
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!
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.
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.
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.
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.
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.
you don't break the law, you don't have to worry
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.
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".
you sure you read the fine print?
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
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!
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.
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).
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.
I quote again Paul Craig Roberts (see "Bring
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?
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
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