Fred Foldvary on Reform Asset-Forfeiture Laws
|January 9, 2007||Posted by Staff under Progress Report, The Progress Report|
Let’s Reform Asset-Forfeiture Laws
by Fred E. Foldvary, Senior Editor
I wrote about civil asset forfeiture in my November 1997 editorial . Government seizes and confiscates property as an allegedly civil rather than criminal case, without requiring any conviction by a court trial. The government does not have to prove any guilt.
This confiscation has been escalating in the United States. There are over 200 laws on asset forfeiture on the federal books, plus many state and local laws. Government agents confiscate cars, houses, boats, and cash, often just on the suspicion that the property was involved in drugs, intoxication, prostitution, the possession or transfer of cash, and other acts, even if the owner was not aware of the activity. (See government reports .)
As just one example, on February 17, 1998, the U.S. Attorney’s office in Houston, Texas, seized a Red Carpet Motel because there was drug activity in some of the rooms. The motel owner was not involved in any drug crimes, and had even called the police to report drug activity.
In New York City, the police are now confiscating cars of drivers suspected of being intoxicated. The car can remain confiscated even if the person is acquitted! Leased cars can be confiscated, but not rentals, so evidently the way to prevent the police from stealing you car in New York City is to drive a rental and keep your own car parked in New Jersey. But more than 20 states also practice car-confiscation, as governments realize it is an easy way to grab property without the expense of a trial.
Another bill has been introduced to reform civil asset forfeiture. The U.S. House of Representatives is scheduled to vote on June 23, 1999, on HR 1658, the Civil Asset Forfeiture Reform Act of 1999, sponsored by Rep. Henry Hyde, R-IL, who has sponsored previous reform bills. The House Judiciary Committee approved it on June 15. The bill, which has 59 co-sponsors, is supported by a wide range of civil liberties groups, including the National Rifle Association, the American Civil Liberties Union, Americans for Tax Reform, the National Association of Criminal Defense Lawyers, Forfeiture Endangers American Rights, and the American Bar Association.”
According to a press release of June 19, 1999, by the U.S. Libertarian Party, HR 1658 would reform current law by:
- * Requiring the government to prove by “clear and convincing evidence” that property is subject to forfeiture. (Current law requires only a “preponderance of evidence” standard.)
* Eliminating the requirement that a property owner file a 10 percent bond to challenge a seizure.
* Providing for an “innocent owner” defense, so that people who were unaware that their property was being used unlawfully could have it returned.
* Requiring the government to notify in writing anyone whose property has been seized, and forcing the government to return the property if such notice is not given.
* Allowing property owners to sue the government for destruction of seized property while in its possession.
* Awarding interest payments to property owners who successfully get their property back.
The National Association of Criminal Defense Lawyers is also calling on people to contact their representatives.
You may voice your support for HR 1658 by contact your U.S. House representative by calling the Congressional switchboard at 202/225-3121 or 202/224-3121. Ask to speak to the office of your Representative.
Asset forfeiture is an old practice which was used by the British monarchs. But Americans are supposed to be sovereign citizens, not subjects of royalty. The U.S. Supreme Court has, unfortunately, ruled in favor of confiscation, even though it violates the natural rights to legitimately owned property guaranteed by the 9th Amendment to the U.S. Constitution. It will take a constitutional amendment to eliminate this pernicious legalized theft.
Meanwhile, any reforms such as HR 1658 will help constrain the practice. We are fortunate that there are champions of reform such as Rep. Henry Hyde who recognize the evil of the unconstrained confiscating of property.
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Copyright 1999 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.