Forfeiture

Recently, Hearst News started a series on the federal government procedure of forfeiture of assets.  The news articles reveal assets are often forfeited from people innocent of any crime and without judicial review. Hearst News’ effort to inform the general public of what is an unfair, undemocratic practice is commendable. Most folks know very little about forfeiture, only having heard of it as an effective law enforcement tool.

Federal law provides that any property used in criminal efforts may be forfeited. After the forfeiture, the proceeds of the forfeiture are shared not only by the federal authorities but also by local government involved in the seizure.

Few Americans know the extent to which forfeiture can be abused, robbing innocent citizens of their properties. One of the leading cases in forfeiture took place when a group of people purchased a large ship, a freighter. Unfortunately for the owners, they leased it to a South American concern who sublet the large vessel. Apparently, the people subletting from the leaseholders used the freighter to transport a ship load of marijuana. Federal authorities took the valuable vessel from its owners without notice.

When the true owners of the vessel discovered they had been deprived of their property, via the criminal forfeiture statute, they appealed ultimately to the Supreme Court of the United States who ruled the forfeiture was valid even though no notice of forfeiture had been given to the true owners of the vessel.  The only real appeal owners of forfeited property have is to appeal to the good graces of the Justice Department or U.S. Attorney.

In my view there are several problems with this procedure.  First and foremost, property of people who have never committed a crime can be taken with little or no judicial review of the circumstances or fairness of the forfeiture. Second, with forfeiture, police agencies are given an independent source of revenue uncontrolled by any elected official.

Glaring examples can be found locally in Jefferson County’s past in which several thousand dollars of forfeited funds were used not to chase crooks but to re-carpet sections of the then district attorney’s office. In Williamson County, the county adjoining Austin, Texas, a prosecutor once used forfeited funds to purchase an antique automobile. The prosecutor justified this purchase by saying he could use it to attract the attention of young people in order to lecture them on the evils of drug use.

All of us taxpayers pay a great enough price for effective law enforcement. We fund police departments, prosecutors, judges, courts and various staffs associated with the enforcement of criminal laws. It appears to me that should there be income from forfeiting property which has been used in the commission of crimes it ought to go into the general funds and be allocated by the people we elect to make those decisions. 

Part of the genius of a democratic society which has kept America free from abuses of militaristic agencies is civilian control. The only civilian control available to police forfeited funds is the budget, enforced by elected officials such as city councils and commissioners’ courts.

The technique of forfeiture of property based on criminal use needs serious revisions at both ends of the process--both the procedure for taking and the procedure for spending.