House Bill Seeks to Curb Civil Forfeitures
By Michael Grunwald
The rolling of the Red Carpet was a fairly extreme case, but similar horror stories have helped unite a remarkable bipartisan coalition behind a bill to make it much harder for the federal government to seize private property without filing criminal charges. The Civil Asset Forfeiture Reform Act sailed out of the notoriously divided House Judiciary Committee last week after a 27 to 3 vote, and the full House appears likely to pass some version of it Thursday.
For years, civil liberties concerns have taken a back seat in Congress and in court to the war on crime, but this bill has attracted support from a potent array of unusual bedfellows. It was sponsored by the main combatants in the committee's impeachment brawl: Chairman Henry J. Hyde (R-Ill.), ranking Democrat John Conyers Jr. (Mich.), fiery conservative Robert L. Barr Jr. (R-Ga.) and outspoken liberal Barney Frank (D-Mass.). That odd quartet enlisted the support of the American Civil Liberties Union and the National Rifle Association, as well as groups of bankers, lawyers, Realtors, developers, boat owners and anti-tax activists.
The Justice Department and national law enforcement groups are lobbying furiously to kill or weaken the Hyde bill, and its prospects in the Senate are unclear. But after the bill languished in the House for six years, this is clearly its best chance of passage, for a variety of reasons. Crime rates are plunging and fears about crime are waning as well. The Justice Department is unusually unpopular on Capitol Hill these days. There is a strong push to pass the bill for the popular Hyde, who will be out of his chairmanship next year because of term limits.
And then there are the sometimes startling tales of innocent victims who often wait years before the government returns their property, if the property is ever returned.
"You hear these terrible stories, and you just can't believe these things can happen in this country," said Hyde, who has written a book about civil forfeiture. "People take their due process rights for granted, but they have no idea that these laws exist."
The Hyde bill would not change the criminal forfeiture laws, which allow the government to confiscate the ill-gotten gains of convicts. But it would completely overhaul the civil forfeiture laws, which allow federal agents to seize the assets of suspects without a hearing, a trial or even an arrest – and often allow the government to keep the assets even after suspects are acquitted or their cases are dropped without an arrest.
Under the law, defendants must prove at their own expense that their property was never linked to any criminal activity if they want to get it back. The Hyde bill would change all that. It would shift the burden of proof in civil cases from the defendant to the government, forcing prosecutors to produce "clear and convincing" evidence that the assets were somehow tainted. It also would give defendants a chance to get their property back while their cases are pending if they are suffering "substantial hardship." It would award interest to property owners who persuade judges to return their money. And it would provide indigent defendants access to government-paid lawyers.
Police groups argue that the Hyde bill would gut an important tool in the drug wars. They say the onerous "clear and convincing" standard would deprive police of a crucial deterrent. They say the "substantial hardship" exemption would allow drug kingpins to hide their assets before trial and make it easier for them to stay in business while their cases are pending. They say the prospect of free legal aid would encourage criminals to make frivolous claims.
"This is a horrible bill," said Gene Voegtlin, legislative counsel for the International Association of Chiefs of Police. "We know there have been high-profile cases of abuse, but these laws aren't about taking property from innocent grandmothers."
The Justice Department is angry about the bill as well, partly because of law enforcement concerns, partly because its forfeiture fund raked in a whopping $449 million last year, up from $27 million in 1985. Every year, a half-million tourists on the FBI tour get to see the bureau's proud displays of goodies seized from alleged drug dealers: a stuffed kodiak bear, a Harley Davidson motorcycle, a fox fur coat, an emerald and diamond necklace.
In 1997, Justice officials worked out a compromise forfeiture bill with Hyde, but the fragile coalition supporting it fell apart. So this year, Hyde refused to deal with the department, which is not particularly beloved in Congress these days, anyway. Many Republicans have called for Attorney General Janet Reno to resign, some because she refused to seek an independent counsel to investigate campaign finance abuses, others because of her handling of alleged Chinese espionage.
But with the support of groups such as the 270,000-member Fraternal Order of Police, Justice has found some members who will support its efforts to weaken the Hyde bill. On Thursday, Reps. Asa Hutchinson (R-Ark.) and Edward G. Bryant (R-Tenn.), both former U.S. attorneys, will offer amendments reflecting the original compromise with Hyde, reducing the "clear and convincing" standard of proof to a less strict "preponderance of the evidence," and eliminating some of the other more dramatic restrictions on law enforcement.
"The bill just goes too far," Bryant said. "It's good to look out for individual rights, but we shouldn't be helping drug dealers profit from their illegal activities."
But that is not what Willie Jones was doing in February 1991 when federal agents seized $9,600 of his money. Jones, an African American landscaper, was accosted by federal agents at the Nashville airport after he tried to pay cash for a ticket to Houston. They thought he was going to buy drugs. Actually, he was going to buy shrubbery. He was not arrested. But it took more than two years of legal wrangling before a judge ordered the agents to return his cash.
Hyde calls the Jones case "Kafkaesque." Similar episodes have fueled the drive to reform civil forfeiture.
It took four years for the owner of Congress Pizzeria in Chicago to get back more than $500,000 that federal agents took from his restaurant. It took six years for a computer chip dealer called Aquarius Systems of Los Angeles to recover nearly $300,000 that the federal government seized from the company after one of its buyers was arrested for fraud.
"There is a desperate need to protect American citizens from these egregious acts of overzealous law enforcement," said Larry Gamache, a spokesman for the Liberty Project, a group devoted to fighting asset forfeitures. "This bill is long overdue."
© 1999 The Washington Post Company