This material will be posted during the assignment and for a brief period thereafter.
Rejoinder to Dr. Hawkins
THOMAS E. PAYNE
Power [to govern] is delegated and must be exercised according to the judgment of the individuals to whom it is delegated. . . [but] the public has a right to spell out the criteria by which the judgments should be made, and to insist on both competence and good faith in the application of those criteria [emphasis added] (Reiman, 1985).
Before we can fix the problem, we must come to terms with realistic processes and procedures that establish a true change in course. It is a far too simplistic solution to merely call for a fix. The issue is not the need for the fix; that is a much too obvious and by now a foregone conclusion. What we need now is the methodology designed to truly change the offending characteristics of the law.
In his treatise on moral issues in police work, Reiman points out that the citizen not only has the right to demand this change but also a right to "both competence and good faith" in the process of change. Therefore, the concern that must be addressed is who should be the change agent. If law enforcement is to take this role, as proposed, then what guidelines can we put into place to ensure the public's trust? Can we legitimately claim professional privilege and "police ourselves" with the inherent conflict of interest present in our current civil forfeiture procedures? Can we guarantee to the public "good faith" efforts when we have so much at stake economically?
The answers to these questions are beyond the scope of this discussion, but they are answers that we in public law enforcement should be the first to address. We cannot allow the contentment with special units and cash-filled war chests to blind us to this critical juncture in our continuing evolution. Are we to be perceived as for-profit law enforcement agencies dedicated to the public good, as long as we are well financed through the "booty" we recover from the criminal? If this perception holds true, we run a very real risk of changing our historical identity. We will no longer be identified as the new centurions, but rather as the pirates of the Caribbean. A humorous analogy, but one too close for comfort.
The call for change must come from public law enforcement, and we should be willing to sit down at the table with all groups interested in the freedom of the citizen. As a group, our goal would be to craft the process and procedure necessary to insure constitutional rights of all citizens and, as importantly, restore the trust that we have lost over the course of our recent history. The public should expect no more, and we should demand no less. The worst mistake we could make at this important juncture in our history is to do nothing. "But if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and the sword comes and takes any person from among them. . . his blood I will require at the watchman's hand" (Ezekiel 33:6). Just as the watchman, our cost for not sounding the call for reform is too great a price to pay.
REFERENCE
Reiman, J. (1985). The social contract and the police use of deadly force. In F. A. Ellison and M. Feldberg (Eds.), Moral issues in police work. Savage, MD: Srowman & Littlefield Publishers.
CASH REGISTER JUSTICE
THOMAS E. PAYNE
The worm does not his work more surely on the dead body than does this slow creeping fire upon the living frame. Charles Dickens, Oliver Twist
I can find no better analogy to describe the state of our civil forfeiture laws than that used by Dickens in describing the fever that raked the body of young Oliver Twist. The living frame of our democracy and the Constitution on which it is nourished are being devoured by a "slow creeping fire". . . a fever that has invaded our criminal justice system and spread across our nation's courts and law enforcement agencies. A fever caused by our own creation, designed as a statutory antibody, carrying out the dual mission of retribution and restitution, it quickly mutated into a means of revenue production unsurpassed in the annals of law enforcement history. Never before had we in law enforcement found so easy and direct a method of making money, production so prolific that it became a cash cow for agency heads and soon the opiate of the whole body politic. What began as a tool in the arsenal of this nation's war on drugs has too quickly degraded into a money grab, pitting one agency against another, leaving private property strewn across the jurisprudential landscape, much wasted and far too much innocence lost in the quest for justice, a quest that today can only be described as Cash Register Justice.
Asset forfeiture has grown into a multi-million dollar revenue source for local, state, and federal police agencies. Estimates place the income generated at over $500 million in the federal system and millions more in state and local (Murphy, 1991). In its early use, asset forfeiture held the sensible attributes expounded by its proponents, but the lure of ready cash has changed the focus from banging the bad guy to clanging the register. Officer and prosecutors are no longer looking at the offender as the target of their enforcement efforts but rather are looking beyond the offender to his pocketbook, car, or villa. The result of this perversion of original intent is an outcry by the innocent owner, courts, and defense bar. "Failure to strictly enforce the Excessive Fines Clause inevitably gives the government an incentive to investigate criminal activity in situations involving valuable property, regardless of its seriousness, but to ignore more serious criminal activity that does not provide financial gain to the government" (United States v. Real Property Located at 6625 Zurmeriz Drive, 845 F. Supp. 725,735 [C. D. Cal. 1994]). The Supreme Court recognized the government's financial interest in forfeiture proceedings. As it described:
The extent of the Government's financial stake in drug forfeiture is apparent from the 1990 memo in which the Attorney General urged United States Attorneys to increase the volume of forfeitures in order to meet the Department of Justice's annual budget target: "We must significantly increase production to reach our budget target. . . Failure to achieve the $470 million projection would expose the Department's forfeiture program to criticism and undermine confidence in our budget projections. Every effort must be made to increase forfeiture income during the remaining three months of [fiscal year] 1990." (United States v. James Daniel Good Real Property, 510 U.S. 43 [1993]).
The outcome is the perception that the cure is worse than the bite. "What I most fear is that the actions of governments will become so oppressive to innocent people that the bulk of innocent humanity will start to see the drugs [sic] barons as a lesser evil than governments" (Abaci, 1997). The fear of government overreaching has spread across the nation; the fear is not limited to the arena of asset forfeiture, but it is clearly one of the symptoms fueling a national debate.
One merely has to listen to the discussion that occurs daily on the information highway to sense the anger and frustration directed toward the government over the civil forfeiture issue. "The Supreme Court has legalized governmental robbery of 'innocent owners' by police forces with their March decision on property forfeiture" [emphasis added] (Simac, 1996) . . . Steve Dasbach, chairman of the Libertarian Party, said. "Cops have become robbers with a license to steal, under the new ruling" [emphasis added] (Simac, 1996).
Those groups, often characterized as "fringe," are not the only entities that have joined in this debate. In an Internet article questioning whether indigent defendants are afforded the same justice as those who could afford a lawyer, Martin Schaffer, a public defender, captured the current feeling among the defense bar when addressing issues of civil forfeiture:
In the wake of the U.S. Supreme Court's opinion in Bennis v. Michigan, 116 S.Ct. 944 (1996), civil asset forfeiture has lately been getting increased attention. Many observers believe that the system requires additional safeguards, such as: ensuring actual notice of forfeiture proceedings; eliminating incentives that create "contingent fee" law enforcement; authorizing release of certain property pending disposition of the case; and providing counsel for the indigent." (Shaffer, 1997)
Expressing concern over the burden of proof in civil forfeiture cases, one author explained that "the government may rely on hearsay, circumstantial evidence or facts learned after seizure. The standard effectively leaves the claimants with the burden of proving their innocence or losing their homes and other property" (Stahl, 1992).
The perception that government overreaching is trampling the property and due process rights of the citizen has also reached the Halls of Congress. Congressman Henry Hyde, Chairman of the House Judiciary Committee, has sponsored House Bill 1916 in direct response to the concern over abuse by law enforcement agencies in the administration of civil forfeiture laws. In testimony before the House Committee on the Judiciary, E. E. Edwards spoke in favor of H. R. 1916 and on behalf of the 39,000 direct and affiliated members of the National Association of Criminal Defense Lawyers (NACDL). In what by now is a clarion call for reform, Edwards testified:
the unchecked use of over-broad civil forfeiture statutes has run amok. Law Enforcement agencies, in their zeal, have turned the War on Drugs into a War on the Constitution.... It is the civil forfeiture law... which concerns us the most, due to the utter lack of Constitutional safeguards and the unfair procedural advantages it affords the government at the expense of law-abiding citizens. (Edwards, 1997)
In summarizing a previous attempt at legislative reform, NACDL Forfeiture Abuse Task Force Co-Chair David B. Smith, of Alexandria, Virginia, extolled the virtues of the Hyde bill and pointed out the need for reform:
The Hyde bill changes the burden of proof, clarifies the definition of an "innocent owner," eliminates the cost bond requirement, sets a reasonable time period for proper~ owners to challenge forfeitures, and permits appointment of counsel to represent indigent claimants. It will provide greater fairness and due process in the otherwise Byzantine procedural labyrinth--inherited from Draconian customs laws--that often overwhelms innocent forfeiture victims." (Smith, 1995)
The asset forfeiture laws must be reformed to prevent even the perception of government overreaching and profiteering. Hanging in the balance are the constitutional rights of the citizen and, just as importantly, the citizens' trust of their government. The silver star of law enforcement has been tarnished by the rush to profit. Our steps must be toward meaningful reform designed to eliminate the perception of conflict that result from direct economic incentives in civil forfeiture cases. The forfeiture of ill-gotten gains by criminals and criminal organizations is an appropriate and laudable law enforcement goal. But the use of the civil law to water down the procedural safeguards of citizens has proved a nemesis more than an ally to criminal justice agencies. The costs in negative citizen perception and the chance of constitutional violations far outweigh its gains. The moves to reform must encompass a procedural change designed to protect the property and due process rights of the citizen. In short, the same safeguards afforded a criminal defendant when being seized by the government should also be given to the defendant's property. The loss in revenue that these added safeguards will inevitably bring pales in comparison to the loss of the liberty of our citizens.
REFERENCES
Abaci, J. (1997). Internet Home Page. Retrieved September 1997 from the World Wide Web: http://www.abaci@dircon.co.uk.
Dickens, C. (1996). Oliver Twist: The Collectors Library of Classics. Nashville: Thomas Nelson, Inc.
Edwards, E. E. (1997). Testimony before the United States House Committee on the Judiciary, July 22, Washington, D.C. Retrieved September 1997 from World Wide Web: http://www.criminaljustice.org/TESTIFY/test 0003.htm Murphy, S. P. (1991, March 8). 10 Sites Are Seized in U.S. Drug Sweep. Boston Globe, p. 17.
Shaffer, M. L. (1997). Indigence, civil forfeiture and double jeopardy: Equal justice for all? Retrieved September 1997 from the World Wide Web: http:// co.lake.il.us/pubdef/shaffer.htm
Simac, S. (1996). Supreme court agrees cops are robbers. Retrieved September 1997 from the World Wide Web: http://coastalpost.com/96/4/l.htm.
Smith, D. B. (1995). Civil forfeiture laws trash the Constitution. NACDL News Release. Retrieved September 1997 from the World Wide Web: http:llwww.criminaljustice.org/MEDL\/prO00028.htm
Stahl, M. B. (1992). Asset forfeiture, burdens of proof and the war on drugs. Journal of Criminal Law & Criminology, 83, 274-337.
United States v. James Daniel Good Real Property. (1993). 510 U.S. 43.
United States v. Real Property Located at 6625 Zumeriz Drive. (1994). 845 F. Supp. 725, 735 (C. D. Cal).
Rejoinder to Dr. Payne
CARL W. HAWKINS, JR.
Dr. Payne is theoretically correct in calling for some reform to the current practice of civil forfeiture. What began as a good idea--and it still is--needs some revision to its application. The only problem with Dr. Payne's analysis is the hysterical dialogue he quotes from the information highway and the extent of his proposed changes.
Suggesting that the police are engaged in "legalized governmental robbery of innocent owners" and have a "license to steal" goes beyond criticism to outrageous statements in support of reform. There is absolutely nothing wrong in removing illicit money and property from a criminal enterprise. Criminals should not be able to keep any property obtained through illegal ways. Dr. Payne appears to support these statements by reflecting that "the forfeiture of an ill-gotten gain by criminals and criminal organizations is an appropriate and laudable law enforcement goal."
Where we differ is our approach to the amount of reform needed. Dr. Payne suggests that "the costs in negative citizen perception and the chance of constitutional violations far outweigh the gain." He adds, "the moves to reform must encompass a procedural change designed to protect the property and due process rights of the citizen. In short, the same safeguards afforded a criminal defendant when being seized by the government should also be given to the defendant's property." Is Dr. Payne suggesting that the burden of proof shift from a probable cause determination for the illegal property to a higher standard of beyond a reasonable doubt? Civil proceedings have a different threshold of proof than do criminal proceedings. By suggesting these safeguards, Dr. Payne may, in effect, be advocating the elimination of civil forfeiture for future use by law enforcement, because the criminal forfeiture laws already have the procedural requirements he recommends.
The proposed changes I advocate remove the negative perceptions and the chance of constitutional violations without eliminating the use of civil forfeiture. A posted notice of the proceeding is currently required so that any party who has an interest in the property may contest its forfeiture. The reforms to training, preseizure planning, arrest of the offender, audit of the assets, and creation of an accurate database should answer many of the concerns by the critics. Crime does pay well, and the use of civil forfeiture provides law enforcement with an effective tool to disrupt and dismantle crime and criminals. Again: fix it, don't eliminate it!