WHY NO ONE WINS WHEN THE GOVERNMENT
CAN FREELY LOOT PRIVATE PROPERTY

By Leon Felkins, Major, U.S. Army (Retired)


Leon Felkins is a noted anti-forfeiture and civil liberties writer. You'll find his very opinionated Web site at http://perspicuity.net. This article is an overview of the problem. If you're already up on this issue, you might want to copy this and distribute it to your less aware friends.

"Funding of initiatives important to your components will be in jeopardy if we fail to reach the projected level of forfeiture deposits . . . Please advise your staff of specific actions that can be taken to maximize deposits to the [Asset Forfeiture] Fund between now and the end of the fiscal year."
-- Directive 91-12, Jul. 8, 1991, from Director of Executive Office of Asset Forfeiture, Cary Copeland. to, inter alia, all U.S. Attorneys, "Subject: Need to Expedite Asset Forfeiture Deposits," contained in DOJ Asset Forfeiture Manual, vol. 3

Asset Forfeiture -- What is it?

Starting in 1970 a series of laws, with increasing severity, were passed by the U.S. Congress that allowed the government to take private property, with a minimum of difficulty and legal restraint, based on the oft-stated claim that 'forfeiture is an invaluable tool in the fight against organized crime and narcotics traffickers'. While the original application of modern forfeiture laws was for drug violations, the laws that trigger forfeiture have greatly expanded with the result that today we have over 300 federal laws allowing the confiscation of property, from the taking of any part of certain bird's nests -- including feathers or eggs -- (16 USC 0707) to the making of a false statement to a loan officer (18 USC 1014). States and cities have followed the trend, of course, with a similar array of laws.

Confiscation of property by the government is now a very big business -- one that will not be easy to curtail. It is estimated that the Federal government now confiscates nearly a billion dollars per year (1996 is last year for which an accounting has been released) with states and cities likely confiscating as much or more. Estimates are difficult because government agencies are real shy about making such accounting readily available to the public, but the totals are roughly comparable to the "victim costs" from "Crimes of Violence and Robbery" as reported by the Bureau of Justice Statistics - see http://www.ojp.usdoj.gov/bjs/pub/ascii/coctv.txt). While there are federal laws that require some federal agencies to make annual reports on their loot (see 28 USC 524 and 31 USC 9703), states and municipalities typically do not have such laws and even the federal laws are sluggishly complied with (about 4 years tardy at the present time!).

Note that the issue here is not about contraband (property that is illegal to own) or for property taken to fulfill tax liens. For public safety, it seems reasonable that ownership of some materials ought to be forbidden. Further, for fairness to all, tax laws ought to be complied with by everyone.

At this time (September, 1999) there is a bill in the U.S. Senate Judiciary committee that would curtail some of the abuses brought about by the federal forfeiture laws. This bill passed the house 375 to 48 but without strong public support is not likely to pass the Senate or be signed by the President. Federal and state enforcement agencies strongly oppose any such reduction on the very liberal laws that now allow the taking of property. Even though most of the press has reported unfavorably on the government's forfeiture activities, most civic activist groups support reform (the ACLU and the NRA are together on this issue!) and from the lopsided vote in the House one can conclude that the public also wants reform, there is actually little chance the bill will pass the Senate without much stronger support from the public and the press.

What is wrong with Asset Forfeiture?

". . . the purpose of civil forfeiture is not to make a profit for the Government, but to provide a civil remedial device to impose liability on persons who knowingly or consensually acquiesce in the use of their property, . . .", U.S. Department of Justice's Asset Forfeiture Law and Practice Manual, page 2-10.

"Even if there is sufficient evidence to sustain forfeiture, it may be ill-advised and wasteful to pursue the case if the subject property has a low monetary value or is in poor condition, . . .", U.S. Department of Justice's Asset Forfeiture Law and Practice Manual, page 4-6.
Only a few of the more troublesome issues will be listed here as space does not allow the listing of all that is wrong with forfeiture.

Conclusions

Unrestrained government confiscation of private property, i.e., forfeiture, has no place in a civilized society, a constitutional society, and most particularly, the United States of America. The American Revolution was inspired in a large part by forfeiture abuse from the English crown. Now forfeiture is again spreading around the world like a bad plague and has even come back to England which had abandoned it 150 years ago. The U.S. government is the primary source of this evil.

For the first time in nearly 30 years, we now have a chance to do something about this injustice. Write your senators and ask that they support the Forfeiture Reform bill now in the Senate -- as it is without watering it down any further. The news media could use a little encouragement also.

I could not express my conclusions better than Eric Blumenson and Eva Nilsen in their article in The University of Chicago Law Review, Volume 65, Winter 1998, "Policing for Profit":

All these [political] changes, mostly unimaginable a generation ago, are largely the products of 25 years of trying (and failing) to "win" the "War on Drugs". The first step towards recovery, which cannot come too soon, is to look at what we have done to ourselves, and what kind of institutions we have built, on the way to a "drug-free" society.
We should not have to sacrifice "civil" society while striving to become a "drug-free" society!


© 1999 Leon Felkins





September 22, 1999