|Montréal, 18 mars 2000 / No 58||
by Ralph Maddocks
Or so it appears to US governments, where perhaps the most appalling act of any so-called democratic government in recent times has been the re-introduction and vigorous application of
The hundreds of asset forfeiture laws now on the US law books do not necessarily
come into effect after an accused person has been duly tried and found
guilty of some offence. Many of them do not require proof of a property
owner's guilt in a criminal trial because the government considers the
property itself to be criminal. The lawsuit is technically against the
property (in rem) and not against the individual who owns the property
(in personam). This means that the suit is brought as a civil suit
which requires a lower standard of proof. In other words it is only necessary
to show by the so-called preponderance of the evidence that the assets
involved were connected to a criminal activity.
An abuse of the property rights
At this time I have no wish to enter into the debate about the decriminalization of drugs or the incarceration of more prisoners, found guilty of some drug offence or other, than at any time in the history of the United States. Suffice it to say that these forfeiture laws themselves seem to be becoming as great an abuse of the property rights of innocent citizens as any abuse alleged to have perpetrated by a so-called drug kingpin.
I do not know the total value of the properties seized in the entire United States, but in recent years in just one of the border states there were almost
Readers may find all this strange in a country with a Constitution framed by people who, one thought, understood that freedom depended upon the energetic protection of private property rights, and that this protection was among the most sacred obligations of a government. In spite of the guarantees implied by the Fifth and Fourteenth Amendments, we have seen an explosion of laws that allow government to tamper with those very property rights they are charged with protecting.
Much of the abuse of these laws has occurred because the proceeds from these
Much of the legislation extant does not ensure that a property owner who has not participated in, or agreed to, a crime being committed with their property is not punished with the forfeiture of his or her property. Most of these draconian laws do not provide a judicial remedy for innocent third parties or lien holders to recover their interest from the government.
Many newspapers in the USA contain government advertisements offering for sale by auction, jewellery, boats, cars, houses, works of art, etc. Sales which are often made at derisory prices. Those who read of, or attend, such sales probably think that the items for sale are the results of some crime or other and that the original owner probably deserved to have his or her property confiscated anyway. Indeed, if they also reflect a little further on the matter, they may well feel that they are performing some kind of public service. Their purchase is, after all, likely to provide the local gendarmerie with more money with which to buy crime-fighting equipment. Followed, hopefully, by a reduction in their tax bill. None will think that this sale will provide an incentive for the police to look for more property that can be confiscated and used to raise even more money. A virtually endless cycle may, however, have begun.
A cycle caused by this re-introduction of confiscation legislation under the flag of
Forfeiture laws and their consequences
Attempts to use the Sixth Amendment against forfeiture were struck down even as long ago as 1896 and asset forfeiture was a common practice before and during the Civil War. By the early 1920s, the Supreme Court had determined that the fiction of personifying property had become entrenched in law. It stated that regardless of the violence that the fiction does to the constitutional requirements of due process, it was
There have been some appalling incidents in which vehicles jointly owned have been seized, where the wife had no way to claim back her interest in the vehicle; it being assumed that she knew that her husband had used it for criminal purposes. A doctor who prescribes, or who the state believes has prescribed, an unapproved drug can have his entire practice subject to forfeiture, even if his patient willingly accepted the risks and even if the physician believes, in his professional capacity, that the drug could help to cure the patient.
One of the unintended consequences of these forfeiture laws is that they provide a disincentive for acquiring of reliable information. If a landlord who discovers illegal activity in his building should wish to report it to the police he may well be afraid to do so. Simply because the entire building may become subject to forfeiture and because the owner with knowledge will normally have no defence to the loss of his property. Thus, he has no incentive to assist the police in the discovery of illegal behaviour. Another example of this Alice in Wonderland world of
Perhaps the most odious example of the use to which these forfeiture laws may be put is that of Donald Scott, a wealthy man, shot dead by law enforcement agents in his own home in California. In 1992, some thirty police and other law enforcement officers from various Federal agencies stormed his 200-acre ranch. In the confusion, Scott, thinking he was being burgled, came to investigate with a gun in his hand and was immediately shot and killed by a sheriff's deputy.
The warrant permitting this invasion had been issued based upon some erroneous information about marijuana being grown on the property. While none was found and the warrant was later deemed invalid, it appeared subsequently that the true motive had been something totally different.
The real motive was to increase the size of a National Park adjacent to the Scott ranch, offers to purchase his ranch having been repeatedly refused by Scott. It then seems that unscrupulous Park Service officers sought alternative means to serve their ends.
Following this incident, the government of California realised the need to reform the incentive structure motivating such asset forfeiture. California no longer permits its agencies to use property they seize. Perhaps this will be the first tiny faltering step towards restoring the protection of private property rights, that most sacred obligation of a government.
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