House Arrest - Part 1

House Arrest

The Government's War on Things (WOT?)

Written March 18, 1998: Revised October 10, 2000

by Leon Felkins
Email: leonf@perspicuity.net

Introduction

Much has been said in recent years about what some call a new form of taxation, the government's program of civil asset forfeiture. For those of you not familiar with this most atrocious form of Constitutional rights abuse, consult my web site at "http://perspicuity.net/forfeiture/forf-vol.html" for an extensive bibliography and current news reports.

What I would like to discuss in this essay are two specific aspects of Asset Forfeiture: Where it came from (in Part 1) and Where it may go (in Part 2).


Part 1 - The Government's case for Legal Looting

"[Starting in 1485] Confiscation of property was the standard punishment prescribed by law for heresy...There were normally two stages to the exercise. At the first stage, upon the arrest of a suspect, his goods and income were 'sequestrated'. The sequestrations were used to pay the cost of the prisoner in gaol. If he were there long enough the money might all be used up, thereby driving his dependents into poverty...Confiscation proper, which occurred only at the second stage, resulted from a judicial verdict and was a regular penalty for major crimes."
(Quoted from the book, The Spanish Inquisition, by Henry Kamen, Yale University Press.)
"Common sense compels the conclusion that punishment occurs when meted out by the court, not before"
(Krizek, 271 Ill. App. 3d at 537, quoting United States v. Stanwood, 872 F. Supp. 791, 799 in support of an opinion that "the initial seizure of a defendant's property, where there is no final judgment of forfeiture, does not constitute punishment for double jeopardy purposes.")

Background on Asset Forfeiture

Many of us are puzzled as to how it came to be in recent years that the government could get into the business of seizing the personal assets of the citizens in apparent violation of the Constitution. The justification given is that it is needed or is effective in fighting crime, the Mafia, and the "Drug War". There is a long tradition in this country and others of suspending Constitutional guarantees any time there is a public "emergency". But without officially declaring a public emergency, one wonders how the politicians and the authorities can violate these guaranteed rights of good citizens or bad. The Fourth Amendment clearly says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." This was a very serious issue with the founders of this country and, in fact, a primary impetus for the start of the Revolution (See the copy of Jefferson's original draft of the Declaration of Independence where he says, speaking of the King of England, "He has incited treasonable insurrections of our fellow citizens, with the allurements of forfeiture and confiscation of our property". Some other quotes:

"A power over a man's subsistence amounts to a power over his will", according to Alexander Hamilton (quoted from The Federalist #79)
"The Natural Rights of the colonists are these: first, a right to life; second, to liberty; third to property; together with the right to support and defend them in the best manner they can.", according to Samuel Adams.
"Nothing is ours, which another may deprive us of." --Thomas Jefferson to Maria Cosway, 1786. ME 5:440

(More can be found on this issue in my article, "Property and Liberty: You can't give up one without losing the other", online at "http://www.progress.org/leon01.htm")

Some would say that the taking of private property in addition to any penalties determined by the criminal courts is also a violation of the Fifth Amendment's ban against double jeopardy. But the Supreme Court has already ruled that such is not the case (See United States v. Ursery (95-345), 518 U.S. 267 (1996), online at "http://supct.law.cornell.edu/supct/html/95-345.ZO.html". The court said,

"In rem civil forfeitures are neither 'punishment' nor criminal for purposes of the Double Jeopardy Clause. . . in rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment for double jeopardy purposes."
So, you see, if the government is convinced that you -- or your property -- committed a crime, and it decides to take your property, your home and your bank account and your wife and children are dumped on the street, that is, by no means, a "punishment", but is simply a "remedial civil sanction". Aren't words wonderful!

We also note that the Fifth Amendment states that no person shall be "deprived of life, liberty, or property, without due process of law", and the Eighth Amendment states that "excessive fines [shall not] be imposed", but I suppose those points are academic, at this stage.

Before we go on with the subject of Forfeiture, a quick comment on the workings of Constitutional Government: How is that the government can simply ignore the Constitution? Simple; they discovered a long time ago that nothing happens when the Constitution is ignored. After all, practically speaking, what can the people do about it? Not much. Today, nearly every one of the Bill of Rights are routinely ignored by the government, some much more than others, of course.

Putting aside the problems with the Constitution, let us look at "How We Got into This Mess", which is a chapter title from Representative Henry Hyde's book, Forfeiting Our Property Rights, an excellent reference on this subject.

Medieval British Government adopts a "Legal Fiction"

You are not going to believe this, but I assure you I am not making this up: the asset forfeiture laws are based on the concept "that an object can commit a wrong and be held guilty for its misdeeds. Therefore, it is argued, property may be subject to punishment. That punishment is forfeiture.", quoting from Rep. Hyde's book.[Note 1].

Now we all have, in a fit of frustration, had the desire to kick the car or the television set when they refused to do as told and we know that some people have actually carried out acts of violent "punishment" against such objects in a fit of rage. We also know that little children readily accept that objects and animals have a soul or spirit and that even some religions support such beliefs (Such beliefs are called "animism" about which you can learn more than you ever wanted to know at http://www.sim.org/simnow/religions/animism.html). Now I have no objection to children believing in animism, some religions promoting animism, or me attacking my car with an AK-47 when it decides to quit forty miles from the nearest service, but for the government to invoke it into law?! Please. Such abuses of the law are commonly referred to as "legal fictions" (See "Civil Asset Foreiture is Based on Legal Fiction that an Inanimate Object Can be Guilty of Wrongdoing" at "www.reagan.com").

The Deodand Law or "The Ox must be Punished" Theory

In medieval times, the English rulers came up with the law of "deodand" which held that when non-human objects, i.e., inanimate objects and animals, caused the death of a person, that object was automatically forfeited to the Crown (at first, it was the Church). I quote from Brenda Grantland's essay, "ASSET FORFEITURE, MOTIONS FOR RETURN OF PROPERTY, AND OTHER PROCEDURES GOVERNING RECOVERY OF PROPERTY SEIZED BY POLICE", online at http://www.geocities.com/TheTropics/Shores/4190/forfeit.htm,
"the English law recognized a kind of forfeiture known as 'deodand', which required forfeiture of the instrument of a person's death. The principle was based on the legal fiction that the instrument causing death was deemed 'guilty property' capable of doing further harm. For example, if a domesticated animal killed a person, it would be forfeited, usually to the King, regardless of the guilt of its owner. The original purpose for creating this legal fiction was to satisfy the superstition that a dead person would not lie in tranquility unless the 'evil property' was confiscated and viewed by the deceased's kin as the object of their retribution. Eventually, the King used forfeiture to enhance revenue, and this corrupt practice lead to the statutory abolishment of deodand in England in 1846."
The process used by the courts to prosecute the "evil object" became known as an in rem proceeding, a term still used today in forfeiture cases in which the property is prosecuted instead of an accused person (which is called an in personam proceeding). A discussion of "in rem proceedings" is contained in scholarly publication,
Eric Blumenson and Eva Nilsen, "Policing for Profit: The Drug War’s Hidden Economic Agenda", 65 U. Chi. L. Rev. 35 (1998),
of which there is a fairly complete draft online at http://www.fear.org/chicago.html.

But such superstitions belong to the Middle ages, a time of witchcraft trials, the Inquisition, slaughtering of millions of "primitive savages", extracting of confessions by torture, and a general lack of any respect for human rights. Surely no modern civilized country would stoop so low as to adopt such methods in the guise of fighting crime. Except one: The United States of America. Further, that country is in the process of promoting that evil practice to every other country of the world.[Note 2] The next section takes a look at how this could happen.

Modern US Government adopts a "Legal Fiction": The WOT is Launched

"Property is surely a right of mankind as real as liberty. The moment the idea is admitted into society that property is not sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence."
John Adams, second president of the USA.
The Founding Fathers were particularly sensitive about property rights and tried to prevent forfeiture abuse by the government by specific reference in the Bill of Rights. About the only application of forfeiture was in Admiralty law which did allow seizure of vessels on the high seas that were involved in some violation of law. In the American Civil War, the "Confiscation Act of 1862" allowed the seizure of private property of Southern Rebels and their sympathizers based on there being a state of war. But in general, there has been little use of forfeiture by our government.

Until the "War on Drugs" was established! Originally, forfeiture laws were written to be used as a weapon in this ill-conceived "war". It has now been expanded to almost every area of law enforcement, including the catching of the wrong fish, wherein your boat may be confiscated (for more on the expansion of forfeiture, see my article, "Uncle Sam is Hooked on Forfeiture and Seizure and Just Can't Stop It!", which originally appeared at the "www.pissedoff.com" site . Forfeiture can now be triggered by over 300 "infractions" of the law.

Yet, the concept is still in its infancy. The government has only scratched the surface for the potential public good that can come from holding inanimate objects and animals responsible for their actions.

To explore that, we go to Part 2 of this essay, "A Bountiful Future for Deodand" which will suggest many ways that the government can expand WOT.

***

Part 2 - A Bountiful Future for Deodand

In Part 1, I provided some background on the concept of the government's "War on Things" (WOT) wherein the government has declared that inanimate objects must be held accountable for their actions and be punished when they are involved in an illegal activity. However, upon examination of this concept we find that the government has been somewhat shortsighted in the application of this principle. I would now like to suggest some of the ways the program can grow to its full potential.

The Government is on a Roll -- but it could do better

While the government is great at reaction, its bureaucracy does not really provide a fertile ground for imagination. In particular, they have progressed little in the field of deodand or the arrest and punishment of inanimate objects. I will try to help in providing a few ideas from which I think they can build (in turn, for this very civic act, I hope they might cut me a little slack on my income tax this year).

But let us first review the logic of the arrest and punishment of inanimate objects as proclaimed by our governments. First off, the government insists that they are punishing the object, not the owner of the object, which is the basis for their claim that the owner has not been subjected to Double Jeopardy (affirmed all the way to the Supreme Court). It is also the basis for getting around the Fourth Amendment of the Bill of Rights which does not allow unreasonable searches or seizures. Further, it allows the government to take property of people who were not knowledgeable of or involved in the commission of the crime in any way. (For example, the government seized the Red Carpet Inn in southwest Houston, Texas, because some of the guests thereof were known to have exchanged drugs for money in and about the property. See the March 11, 1998 issue of the Houston Chronicle.)

In view of all that, we must accept that it is the object being punished, not the owner of the object. That leads to some interesting possibilities!

Expand the Scope of Punishments for Objects

While you have to admire the government for their resourcefulness in coming up with the idea that non-human objects must be held accountable for their heinous acts, their forms of punishments lack imagination. Sure, a nice new Lincoln Town Car is going to suffer some loneliness, boredom, and indignities being locked in some police compound without the constant, loving care that it was experiencing in the hands of the owner. But what about confiscated money? Do you really think money is all that upset sitting in a Federal Marshall's lock box in a big Federal Bank versus its usual treatment of being passed from dirty hand to dirty hand, run though the washing machine, stuffed in smelly mattresses, etc.? I think not. There needs to be a more appropriate punishment for money, for sure.

One suggestion would be to take huge bundles of it up in an airplane and dump it over Baltimore. Or for more serious crimes, how about having the bills processed into rolls of toilet paper? Surely this would cut down on the rather flagrant involvement of money in so much illegal activity.

One more example: Consider the casino that the Feds seized out in California. I believe it was called "The Bicycle Club". How did they punish it? They gave it to the Federal Marshals who kept it in operation! Well, being operated by Federal Marshals is admittedly pretty humiliating but we could do better. Why not convert the casino to a church bingo hall? Surely no more casinos would abuse the law once they heard about that!

Expand the Scope of Objects that can be Punished

Why limit punishment of objects to those that may have assisted in violating drug, speeding, prostitution, or fishing laws? I find in my own personal life many things that irritate the heck out of me.[Note 3] Following is a partial list:

    Telephone Systems

    I think it would be fairly easy for a prosecutor to prove that phones have assisted humans in various forms of criminal activity -- maybe even a few drug deals. Why be timid? I say let's send in the door bashing BATF to make a call on AT&T, tomorrow! Then maybe I can be spared from those harassing phone calls wanting to tell me about credit card insurance each evening just as I sit down to a nice dinner!

    Cigarettes

    I have heard repeatedly from the government that cigarettes cause a great deal of human death and suffering. Yet, as far as I know, the government has yet to bring a single cigarette to trial. I suppose having that stupid government-imposed warning label on every pack could be considered punishment but then we have equally stupid "nutritional contents" labels on quite innocent objects such as beer and salt. So, I don't know.

    Chiggers

    Here in the South, chiggers are a real annoyance. If there is not a law against them biting folks, there certainly ought to be (I'm sure Congress could crank out a 900 page prohibition in a couple of days)!. I would like to see some of my tax money diverted to a government program that throws each one of those little suckers in the dungeon, strapped in leg irons!

    Other Aggravations

    There are other big irritations caused by inanimate objects, such as tornadoes and failed dams, which technically are no different as far as having a spirit than say an automobile, nevertheless pose large technical difficulties in "bringing them into the station". Size does matter as both the porn queen and our government will attest to (we kicked Granada's butt rather than the Soviet Union to demonstrate our intolerance of Human Rights abuse), and therefore these "unlawful" objects will just have to be ignored for the time being. But with enough tax-payer funding, anything is possible. . .

Closing

In closing, I would like to provide one more quote for those of you who may yet be a bit skeptical of the government's intentions and the consequences of their seizing of property. The quote is from that impeccable source of knowledge, the King James Bible:
"If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox [shall be] quit."
Exodus 21:28
That settles it.

Now back to beating the hell out of my lawn mower which is ungratefully refusing to start after the nice long hibernation it has enjoyed this past winter.



Note 1. Which explains why we are now seeing many court cases with such strange titles as:

"UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. ALL RIGHT, TITLE AND INTEREST IN A 30 ACRE PARCEL OF LAND , MORE OR LESS, AND APPURTENANCES THERETO, KNOWN AS BREEZY HILL ROAD, CITY OF PARKSVILLE, TOWN OF LIBERTY, SULLIVAN COUNTY, NEW YORK, "
or
"City of St. Paul, Respondent, vs. Two Hundred Sixteen and 05/100 Dollars ($216.05) in Various Denominations of United States Currency, 15 Slot Machines and 5 Video Poker Machines as Listed on Attached Exhibit."
Note 2. The U.S. has been signing treaties for several years now with every major country in the world to allow "cooperation" in forfeiture and seizure of assets. A typical one is reported by the Newswire article of April 2, 1998, "CLINTON TRANSMITTAL ON TREATY WITH ISRAEL" in which it states:
"The Treaty provides for a broad range of cooperation in criminal matters. Mutual assistance available under the Treaty includes: taking the testimony or statements of persons; providing documents, records, and articles of evidence; serving documents; locating or identifying persons or items; transferring persons in custody for testimony or for other assistance; executing requests for searches and seizures; assisting in proceedings related to seizure, immobilization and forfeiture of assets, restitution, and collection of fines; executing procedures involving experts; and providing any other form of assistance appropriate under the laws of the Requested State." (my emphasis)

Note 3. For those of you who would like to research further into the diabolical nature of things, pick up a copy of Dr. Edward Tenner's fascinating book, Why Things Bite Back, 1996, Alfred A Knoph, Inc.


Further Reading and References:

  1. An outstanding summary of the whole government Forfeiture and Seizure business and its consequences is the essay, "POLICING FOR PROFIT: THE DRUG WAR'S HIDDEN ECONOMIC AGENDA", by Eric Blumenson & Eva Nilsen, originally published in the University Of Chicago Law Review, Vol. 65, Winter 1998, No. 1. This is book size (72 pages on my printer!) and includes the most comprehensive bibliography that I have seen.

  2. A nice summary about the government's obsession to steal private property: "Seizure Fever: The War on Property Rights", by James Bovard.

  3. It is amusing to watch the infighting that goes on within government agencies over the spoils of forfeiture. See this July 4, 1999 AP article, "'FORFEITURE LAWS HAVE RUN AMOK' Agencies Fight Over Share of Seized Assets" about the Arkansas, Missouri and other state police trying to hang on to their loot. An excellent series of articles by Chris Osher appeared in the Arkansas Democrat Gazette in July, 1999. An online copy is here.

    Karen Dillon of the Kansas City Star did a similar series in January, 1999, online here.

  4. US Code - Title 21, Section 881 While there are many laws that invoke forfeiture, this is the biggy. This one is about drugs and was the one that started it all.

  5. Attorney Steven L. Kessler has several good articles online at "Kessler on Forfeiture".

  6. Very troubling stories of forfeiture abuse from the House of Representatives hearings of JUNE 11, 1997 are online here.

  7. Some interesting statistics on Asset Forfeiture are provided by the Illinois State University students.


More of Leon's essays may be found on his webpage, I.M.H.O. at http://www.perspicuity.net. He can be reached by email at "leonf@perspicuity.net".