Special Op-Ed
The Progress Report is pleased to present this original essay by Leon Felkins.
Property and Liberty:
You can't give up one without losing the other
Written by Leon Felkins, January 2, 1999
Copyright 1999, all rights reserved
"No other rights are safe where property is not safe." -- Daniel Webster
"The right of distribution over private property is the essence of freedom." -- Merrill Jenkins
"Because civil forfeiture action is against the property, the government need not prove the property owner's guilt . . .Traditionally, if the court finds that probable cause has been established, the burden shifts to the claimant to prove . . . that th
e property was not used for illegal purposes. . ." -- Assets Seizure & Forfeiture: Developing & Maintaining a State Capability, a manual by the U.S. Department of Justice
In the June 11, 1997 hearings on government asset forfeiture reform held before Representative Hyde's Judiciary Committee, a Mr. Billy Munnerlynn, the owner of a once successful air charter service but now a truck driver, made the following closing statem
ent:
"All of a sudden I
could not even get a job with these airlines. These airlines haul mail that's Federal. I was put on a list. I can't
think of the name of it, but the DEA uses it to identify possible drug runners and gun runners and money
launderers. I couldn't work anywhere. Basically, I was forced to sell the other prop airplanes that I had flying
into the Grand Canyon. I had four prop planes, a Malibu a 210, and a training plane. I was forced to sell all these
aircrafts to pay my attorney bills.
Now that all these things are gone, all the money is gone. I filed for bankruptcy. We lost our home. We lost all
our aircraft. I lost my airline certificate. The Federal Government told me they would wait to see the outcome of
the forfeiture hearings. It wouldn't be right for them to destroy my certificate, I spent over $200,000 getting that
certificate. My pilot license and Mr. Bailey, I believe, can confirm this, cost well over $80,000. The Lear jet
cost $500,000.
I can assure this committee I have never ever given thought to ever breaking the law, much less flying money
launderers, drug people.
What was Mr. Munnerlynn's crime? He didn't commit a crime -- his plane did! You can read the details at http://commdocs.house.gov/committees/judiciary/hju42848.000/hju42
848_0.HTM but in summary, the government prosecuted his plane because it had been used to transport a drug dealer.
Our Federal and state governments confiscate property in the billions of dollars annually using civil asset forfeiture wherein the property itself is prosecuted and property, unfortunately, does not have a Bill of Rights!
How all this came to be is examined in this essay.
The American people seem to be either unaware or indifferent to the quiet but steady withering away of our privacy and property rights.
In this essay, I will examine the relationship between the right to private property and liberty and with the help of some quotes from those much wiser than me, show the disastrous impact that the losing of private property rights has o
n the few liberties we are still allowed in America. But first a short summary on how we got into this mess.
- A Cause for Alarm
Of all tyrannies a tyranny exercised for the good of its victims may be the most
oppressive. It may be better to live under robber barons than under omnipotent
moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity
may at some point be satiated; but those who torment us for our own good will
torment us without end for they do so with the approval of their own conscience.
-C.S. Lewis
Since the early 1970s, the Federal government has created and enforced a steady stream of ever more oppressive laws aimed at taking property from citizens with minimum - if any - due process. The stated reason for this rash of unconstitutional laws is to
"fight crime", particular drug related crimes. Whether this is the actual reason or not, I will leave for you to decide.
It All Started with RICO (Racketeer Influenced and Corrupt Organizations act)
The Legislative Branch of the massive organization that we fund up in Washington, D.C., the Federal Government, tries to make it appear that almost all of its repressive legislation is something urgently needed without which the country w
ould collapse. Since the voters, practically speaking, haven't a clue as to what is needed and further do not wish to be bothered with it, the legislators simply spread the necessary propaganda through the news media so that the voters will come to the de
sired conclusion. To do this effectively, they need to convince the public that the present societal problem is one so serious that a war against it must be declared. These wars change from time to time but at present the major issue is the "War on Drugs"
. Back in the '60s it was "Organized Crime".
At that time, Congressional committees held all kinds of hearings on "Organized Crime" and the news was full of it. The first major hearings were the Kefauver Committee hearings back in 1951, followed by the McClellan Committee hearing in 1957.
Attorney General Robert Kennedy also concentrated on battling the Cosa Nostra with Attorney General Mitchell continuing his work [1] after Kennedy's untimely assassination.
By the end of the 1960s, McClellan had decided that some kind of legislation needed to be enacted to effectively fight the Mob. At this point he acquired the services of Professor G. Robert Blakey to help him write effective legislation.
[2] In fact, Blakey was the major contributor to McCllellan's proposed law, "Organized Crime Control Act", a part of which was the "Racketeer Influenced and Corrupt Organizations Act", RICO.
According to Blakey, he suggested to McClellan that the way to battle organized crime was to get at the organizer's –– the Mafia kingpins –– wealth. He argued that hitting them with fines and jail sentences was useless.
To get to them, you needed to strip them of their wealth –– including even their ability to pay their lawyers.
So, new laws had to be written that would allow the taking of the property of Organized Crime lords. Unfortunately, intended or not and I believe it is, our representatives seem to always write laws that have greater scope than what is indicated by the
title! RICO is a good example –– although there are many others. While the law was promoted as being a tool against organized crime, it is written in very broad terms, such that it covers just about any perceived criminal activity. Using such broad termi
nology in the statutes is purposeful; you never can tell when the enforcers might need to use it for other than the advertised purpose!
Not only has this law been extended in application far beyond its original stated intention, but a raft of other laws of similar content with regard to property takings, have also been foisted on the people. But before we get into that, let us re
view what the Founding Fathers and other political philosophers have had to say about the right to own private property and the right of governments to take that property.
- What the Founding Fathers and Other Political Philosophers had to say
The American moron . . . wants to keep his Ford, even at the cost of
losing the Bill of Rights.
H. L. Mencken
Many of our most famous political philosophers have strongly emphasized that liberty is intimately tied to the right to private property. Protection of the rights of private property was of utmost importance to the Founding Fathers as the
y created the Declaration Of Independence and the Constitution. After all, they had just fought the Revolutionary War for which many historians claim was greatly inspired by the abuses of England in taking of private property. In fact, "Libe
rty, property and no stamps!" was the first slogan of the American Revolution, according to Catherine Drinker Bowen.[3] Ms Bowen goes on to say, ". . . property was not a privilege of the higher orders but a right w
hich a many would fight to defend. Men had indeed died to defend it in the war with England." (Emphasis added).
Let me list some other pertinent quotes:
- From the Virginia Bill Of Rights, 1776:
"SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment
of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." [4]
- Voltaire wrote, "Liberty and property is the great national cry of the English. . . It is the cry of nature".[5]
- Stephen Hopkins, from Rhode Island, in 1764 said, "they who have no property can have no freedom."[6]
- According to John Locke, "The great chief end therefore, of Mens uniting into Commonweaths, and putting themselves under Government, is the Preservation of their Property." He also said, "Whenever the legislators endeavor to take away and destroy the
property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience,..." -- John Locke, 2nd Treatise of Government, 1690
- "A power over a man's subsistence amounts to a power over his will", according to Alexander Hamilton (quoted from The Federalist #79, online at http://www.lexrex.com/enlightened/
Federalist/fed79.htm).
- John Adams said that "[t]he moment that idea is admitted into society that property is not as sacred as the Laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be sacred or li
berty cannot exist."[7]
- "The Natural Rights of the colonists are these: first, a right to life; second, to liberty; third to property; together with the right to support and defend them in the best manner they can.", according to Samuel Adams.
- "Nothing is ours, which another may deprive us of." --Thomas Jefferson to Maria Cosway, 1786. ME 5:440
- And here is the famous quote from the much admired case, "BOYD v. U S, 116 U.S. 616 (1886)"[17], (referring to a decision by the English jurist, Lord Camden):
The
principles laid down in this opinion affect the very essence of constitutional liberty and
security. They reach further than the concrete form of the case then before the court, with
its adventitious circumstances; they apply to all invasions on the part of the government
and its employes of the sanctity of a man's home and the privacies of life. It is not the
breaking of his doors, and the rummaging of his drawers, that constitutes the essence of
the offense; but it is the invasion of his indefeasible right of personal security, personal
liberty, and private property, where that right has never been forfeited by his conviction
of some public offense. . ."
- Madison understood that the protection of property is the foundation of all freedoms. He said, "... a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of
no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possissions".
He also said, "Government is instituted to protect property of every sort. . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own." [18]
- For a scholarly analysis of the relation of liberty to property rights, see James M. Buchanan's book, Property as a Guarantor of Liberty.[14] I quote from his summary:
"The central argument is that private or several property serves as a guarantor of liberty, quite independently of how political or collective decisions are made. The direct implication is, of course, that effective constitutional limits must
be present, limits that will effectively constrain overt political intrusions into rights of property, as legally defined, and into voluntary contractual arrangements involving transfer of property. If individual liberty is to be protected, such constitut
ional limits must be in place prior to and separately from any exercise of democratic governance."
Dr. Buchanan does not discuss what is to be done if the politicians chose to ignore the Constitution.
The Modern Regression in Property Rights
After his Ignoble Disgrace, Satan was being expelled from
Heaven. As he passed through the Gates, he paused a moment in thought,
and turned to God and said, "A new creature called Man, I hear, is soon
to be created."
"This is true," He replied.
"He will need laws," said the Demon slyly.
"What! You, his appointed Enemy for all Time! You ask for the
right to make his laws?"
"Oh, no!" Satan replied, "I ask only that he be allowed to make
his own."
It was so granted.
-- Ambrose Bierce
James Bovard says in his book, Lost Rights,[8]
"Beginning in 1970, Congress enacted legislation to permit government to seize the property of Mafia organizations and big-time drug smugglers. In succeeding
decades, other forfeiture laws were enacted, and federal agents can now seize private property under over 200 different statutes [there are now over 300 statutes that trigger forfeiture]. From 1985 to 1991, the number of federal seizures of property unde
r asset forfeiture laws increased by 1,500 percent –– reaching a total of $644 million. State and local government have also seized hundreds of millions of dollars of property in recent years. Steven Kessler, a New York lawyer who authored a three-volume
1993 study on federal and state forfeiture, writes, 'The use of forfeiture has probably increased a hundred-fold in the last ten years.'"
In the book, Mr. Bovard goes on to discuss the many ways the government has been destroying the right to private property:
- Asset Forfeiture for alleged crimes
- Zoning Regulations
- Environmental/Wetlands Regulations
- "Historic" property confiscations
- Eminent Domain takings ("Urban Renewals", etc.)
- Conversion of land to National Parks and National Forests
We do not have the space to examine all of these approaches to trumping the right to private property, but will limit our review to the history of the asset forfeiture laws. In particular I wish to present a lesson in modern politics. I wish to demonst
rate how Congress initially will pass a law that seems fair and of little impact on the normal law-abiding citizen, and then progressively modify that law to a final form that is very abusive to everyone. It is called the "How to cook a Frog"[9] theory!
The 1970 Laws
Eight days after RICO became law, Congress enacted the "Comprehensive Drug Abuse Prevention Control Act", P.L. 91-513, which included a statute called the "Continuing Criminal Enterprise Statute" (CCE).[15] According to Professor Blakey[2], a principle author, this bill and the RICO bill were both created and presented for passage in the hopes that at least one would pass. They both did! By the way, the act passed
the Senate 82-0.[10] Such lop-sided votes, I believe, tell us much about the nature of our government!
The CCE is mostly a copy of what is in the RICO with regards to forfeiture, but directed specifically towards drug criminals. It is interesting that in both the Senate and the House, forfeiture was hardly mentioned. There was no discussion. Maybe they
were ashamed of what they were doing!
The forfeiture provisions of these laws were not interesting enough to the law enforcement people to encourage their usage. Some of the problem may have been because these laws were so poorly crafted and so ambiguous and vague but more likely the reaso
n they were not used is that the laws only allowed for the forfeiture of profits. While the taking of a criminal's profits is a more honest and fair approach to forfeiture, it required tedious accounting. It appears that in government "justice", expedienc
y trumps fairness, and so the law had to be improved!
According to the GAO, the '70s were a disaster for the drug abuse prevention effort! The GAO issued a scathing report on the Justice Department saying it was not using Forfeiture Laws to the extent that it could and that its management of seized proper
ty was atrocious.
While the enforcement authorities disappointingly used the law, the law did have one profound accomplishment: it established modern civil forfeiture –– it allowed the "camel to get his nose in the tent". Once a law like this is on the books, and has th
e basic structure needed, then subsequent modifications can be made piecemeal with little fanfare that can turn a fairly mild and acceptable law into an abusive and dangerous law.
For reference, specifically what the law made subject to civil forfeiture was "all controlled substances produced or obtained in violation of various statutes, as well as all raw materials, products, and equipment used or usable for the making, handlin
g, or conveying of illegal drugs and any containers for them. Conveyances used to transport or conceal such drugs were also forfeitable." A humble beginning.
1978 "Psychotropic Substances Act", P.L. 95-633
This act, becoming law on November 10, 1978, considerably expanded the assets forfeitable for drug offenses by adding all moneys and proceeds -- including cash, negotiable instruments, securities, and other things of value -- from drug crimes. It also
made all proceeds civilly forfeitable. According to a GAO report this amendment to the drug laws resulted in a twentyfold increase in the value of DEA forfeitures compared to the previous year!
The 1984 "Comprehensive Forfeiture Act", part of the "Comprehensive Crime Control Act Of 1984", P.L. 98-473
This act authorized forfeiture of real property used, or intended to be used, to commit or facilitate a federal drug felony. According to Blumenson and Nilsen[11] "There is legislative history suggesting
seizable property was conceived as property actually used in manufacturing drugs. However courts and prosecutors have interpreted it broadly to include any real property having a connection to a drug offense punishable by a year in prison." This creeping
of the intent of legislation seems to be a problem with many of our modern laws.
This act greatly expanded seizure options! According to Dr. Levy, "Forfeiture receipts have just about doubled every year from 1985, making the share of state and local law enforcement agencies increase explosively."
To illustrate the extent of the subterfuge that Congress and the enforcement agencies will go to, I note that this act included a "substitute assets" law providing that property of an equal value may be forfeited in place of forfeitable assets that are
no longer available. This is a prime example of the kind of disingenuous stuff the congress irresponsibly sticks in their legislation giving little thought to the trouble it will cause in application. Imagine, if you will the legal complexities arising f
rom the allowing of forfeiture of substitute assets when the "relation back"[12] doctrine is also in place.
The act also established the Department of Justice Assets Forfeiture Fund. This was intended to become the repository of all the seized assets of the Federal Government. However, not to be outdone, the Treasury decided it wanted its own forfeiture fund
, which was established later.
A new feature that greatly increased the overall use of forfeiture by both the states and the National government is the authorization of the Attorney General to equitably share forfeited property with cooperating state and local law enforcement agenci
es.
The 1986 "ANTI-DRUG ABUSE ACT", P.L. 99-570
Now, the drug laws are really getting nasty! At that time the country was under the control of the Reagan administration and the fever for "law and order" was really heating up. First off, this bill instituted the cruel mandatory sentences for
drug-related crimes — one of the worst infringements on the justice system process ever instituted. The new law also raised federal penalties for marijuana possession and dealing, basing the penalties on the amount of the drug involved with such ridiculou
s formulas as "possession of 100 marijuana plants will get you the same penalty as possession of 100 grams of heroin". The law established criminal penalties for simple possession of a controlled substance. Later an amendment was added that established a
"three strikes and you're out" policy, requiring life sentences for repeat drug offenders, and providing for the death penalty for "drug kingpins"!
The bill also authorized the forfeiture only of the "gross receipts", a person may have obtained, directly or indirectly, as a result of violation of 18 U.S.C 1956 or 1957, or property traceable thereto. The enforcement agencies considered this to be o
f limited usefulness and therefore it was rarely used.
Further, the bill authorized the forfeiture of the proceeds of money laundering crimes and it allowed the international sharing of federal forfeiture proceeds with cooperating foreign governments.
ANTI-DRUG ABUSE AMENDMENTS ACT OF 1988, P.L. 100-690
Interestingly, this bill declared it to be U.S. policy to create a drug-free America by 1995! Oh well. It increased to $250,000 the allowable award for informants of successful seizures.
Further, the bill;
- Expedites the forfeiture of certain classes of seized property, primarily conveyances.
- Added drug manufacturing equipment and raw materials.
- " Expresses the sense of the Congress that proposals to legalize illicit drugs should be rejected and consideration given only to proposals that directly attack the supply of, and demand for, illicit drugs."
- Facilitated international sharing by allowing transfers pursuant to international agreements rather than formal treaties.
- Authorized the forfeiture of pornography and related materials.
- Further expanded money laundering forfeiture authority.
Financial Institution Reform, Recovery, and Enforcement Act (FIRREA) passed in 1989
This bill authorized civil and criminal forfeiture for bank-related crime to help recover monies looted from savings and loan institutions.
Customs and Trade Act of 1990
Increased the threshold for the administrative forfeiture[13] of property from $100,000 to $500,000 and authorized the administrative forfeiture of monetary instruments without regard to value!
Crime Control Act of 1990, P.L. 101-647
Amends the Controlled Substances Act to make subject to forfeiture to the United States: (1) drug paraphernalia; and (2) firearms used to facilitate the transportation, sale, receipt, possession, or concealment of illegal drugs and any proceeds traceab
le to them. The reason for adding the provision on firearms is to permit the firearms to be forfeited by the DEA or the FBI, instead of having to refer the case to the BATF. I'm not kidding.
The Dire Emergency Supplemental Appropriations Act of 1991
Permitted the Attorney General to use any excess monies in the Asset Forfeiture Fund to procure vehicles, equipment, and other capital investment items for the law enforcement, prosecution, and corrections activities of the Department of Justice.
The Violent Crime Control and Law Enforcement Act of 1994 passed (Public Law 103-322)
Provided the authority to pay state and local property taxes on forfeited real property that accrues between the date of the violation and the date of the forfeiture order.
Provides penalties, including forfeiture provisions, for Child Pornography.
Requires annual audit reports from states on certain aspects of forfeiture.
Note that in the more recent laws, there is a mention of Money Laundering. This is more "Frog-boiling" creep! The government says that forfeiture of private property is good but doesn't completely do the job. What we need is control of the proceeds
of crime -- i.e., money. To emphasize the point, the Department of Justice has now renamed its Forfeiture section to the Asset Forfeiture and Money Laundering Section (AFMLS). While I don't have the space to go into the details here, I will just m
ention that these laws have progressively extended the government's monitoring of financial transaction to everyone -- not just the criminals.[16]
What -- if anything -- can be Done
If voting could change anything, it would be illegal. Graffiti
Well, writing your Congressman is probably the most useless thing you can do! Since every politician is fearful of being labeled "soft on crime" and since the powerful establishment set up for forfeiture of property has the ear of Congress for more tha
n you and I do, talking to your Congressman has little use except to possibly make you feel better.
I believe that getting the news media to give this abuse of our civil liberties front page exposure and prime TV time, is the only way we can turn this around. The forfeiture of property without due process is such an obvious abuse of our guaranteed ri
ghts, that when the politicians that promote it are exposed, they surely will be embarrassed.
The stories of the thousands of innocent victims, particularly the wives and children of the accused, should get maximum and personal exposure.
The public is frustratingly apathetic but can be jolted off the TV couch if enough of the right kind of publicity is put on their plate. The confiscation of property and the demeaning intrusions into our privacy are given little publicity. That needs to b
e changed.
You can't count on the Supreme Court to save us on this issue. Many of their decisions in recent years have seemed more political than judicial. For example they have yet to strike down the awful practice of the Justice Department in which they pay up to
24% of the proceeds from a confiscation to notoriously shady informers. But, again, the Supreme Court does respond somewhat to public opinion (maybe they shouldn't). So, public opinion must be changed.
I leave you with this quote from the testimony of Professor Steven Eagle, George Mason School of Law, to the House of Representatives Committee on the Judiciary, September 23, 1997 (online at http:
//www.house.gov/judiciary/22354.htm):
"Property does not have rights. People have rights.... In fact, a fundamental interdependence exists between the personal right to liberty, and the personal right in property. Neither could have meaning without the other. That rights in proper
ty are basic civil rights has long been recognized." 405 U.S. 538. 552 (1972)."
NOTES
1. For background on War on Organized Crime, see James B Jacobs' paper, "BUSTING THE MOB: UNITED STATES V COSA NOSTRA", online at http://www.dialabook.inter.net/ChapterOne/UPress/Browse/0-
8147-4195-9.html.
2. Robert Blakey, "Shaping Today's Forfeiture Law: A Conversation with Senator McClellan", Journal of Legislation, Vol. 21, Issue 2, 1995.
3. Catherine Drinker Bowen, Miracle at Philadelphia, 1966, Boston, Little, Brown and Company.
4. Written by George Mason.
5. Catherine Drinker Bowen, Miracle at Philadelphia, 1966, Boston, Little, Brown and Company, page 71.
6. Catherine Drinker Bowen, Miracle at Philadelphia, 1966, Boston, Little, Brown and Company, page 71.
7. Quoted from "Liberty Matters", used to be online at
http://www.libertymatters.org/flyers.htm.
8. James Bovard, Lost Rights, 1994, New York, St. Martins Griffin
9. Supposedly the theory of how to cook a frog goes like this: If you take a live frog and throw him in the pot of hot water, he will jump out. The secret is to put him in a pot of cold water and then raise the temperature a small incr
ement at a time. He will stay there until he is cooked!
10. See the online article, "UNITED STATES v. URSERY: DRUG OFFENDERS FORFEIT THEIR FIFTH AMENDMENT RIGHTS", by Sean M. Dunn, online at http://www.wcl.american.edu/pub/journals/lawrev/Dunn.htm, Footnote #7.
11. Eric Blumenson and Eva Nilsen, "Policing for Profit: The Drug War's Hidden Economic Agenda", The University of Chicago Law Review, Vol. 65, No. 1, Winter 1998, Note 41, page 45 (a version of this document is on line at http://www.fear.org/chicago.html)
12. "Relation back" doctrine is derived from ancient English forfeiture laws and specifies that the government acquires title to the seized property at the time the crime was committed –– not when the property was seized or when the a
ccused was convicted.
13. "Administrative forfeiture" is a forfeiture that is processed administratively –– that is without a civil or criminal trial or other due process.
14. James M. Buchanan, Property as a Guarantor of Liberty, 1993, Brookfield, Vermont, Edward Elgar Publishing Co.
15. Leonard W. Levy, A License to Steal, 1996, Chapel Hill, University of North Carolina Press
16. See my online essay, "Know Your Customer", at http://www.pissedoff.com/cgi-pissedoff/hn/get/forums/customer.html.
17. "Boyd v. US" is online at http://laws.findlaw.com/US/116/616.html.
18. As quoted by the excellent paper, "Reforming Property Forfeiture Laws to Protect Citizens' Rights", by Donald J. Kochan, J.D. online at http://209.194.80.158/studies/9803asset/index.htm.
----------------------------------
If you would like to learn more about government asset forfeiture, go online to
Forfeiture Endangers American Rights, at http://www.fear.org or write them at:
Forfeiture Endangers American Rights
P.O. Box 15421
Washington D.C. 20003
(202) 546-4381
For more -- lots more -- by and about Mr. Felkins, visit his WWW site at
http://magnolia.net/~leonf/index.html
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