by Leon Felkins
In Part One, I reviewed and commented on NBC's Dateline story about Louisiana's experiment with "Direct Taxation" of travelers of Interstate 10 which aired in January of 1997 and was repeated on August 22, 1997. By Direct Taxation I am referring to that form of taxation that has become increasingly popular in the last few years in which private property is directly seized from the citizens without the usual burdensome legal process. Louisiana, learning well from its Big Brother, the Federal Government, got a little carried away and was harassing motorists and taking their property, mostly on Interstate 10, to the extent that some people were actually planning their cross country trips so as to avoid Louisiana altogether!
In this segment, the emphasis will be on the effort of the Louisiana government to mend its ways by passing legislation to limit the power of the police and the judiciary in their enthusiastic efforts to take private property. It is fun to watch the antics of people torn between ethical considerations and greed.
Before I proceed with that, however, I think it is worthwhile to pause and reflect on the importance of the news media to the maintenance of liberty, freedom and the protection of individual welfare. While we all get very frustrated with the media for its biased reporting, its presenting of editorials in the guise of news, and its left leaning tendencies, we must surely admit that without them we would live in a state as rigidly controlled as the Soviet Union ever dreamed about with a Gestapo monitoring our every action. It is the media that periodically wakes up some sleepy agency -- like the Medicare/Medicaid agency (HCFA), with a cast of thousands in its "investigative" resources -- and point out to them that there is massive fraud going on right under their noses. And it is the media that has stepped in and said to Louisiana, "Maybe you are going a bit too far with your hijacking of the tourists of I-10".
One more general comment before we move on to the subject material: I think the imposition of the asset forfeiture and seizure program on the US citizens more than any other action of the government, puts the lie to the claim often made by liberals, academics, and many "political scientists" that government agencies are altruistic and that they do what they do for the benefit of the citizens. Surely this program shows, once and for all, that that belief is absolute idiocy.
The Dateline episode, originally broadcast on January 3, 1997, did not go unnoticed by the Louisiana politicians. On January 5, the Baton Rouge Advocate ran the articles, "Foster to review drug forfeiture laws" on January 5, 1997 and "I-10 drug searches," on February 9, 1997. Foster is Mike Foster, the current governor of Louisiana. (Much of the initial reaction of the state to this expose is documented in the NDSN online essay, "Louisiana Law Enforcement Stops Innocent Motorists and Seizes Their Property, Reports NBC's 'Dateline'".)
The Dateline episode brought out several aspects of Louisiana's approach to private asset forfeiture that doesn't look all that wholesome when exposed to the light of public review:
To sue for a return of their seized assets, citizens must pay the highest bond in the nation -- 100% of the property's value. Note that this is true even though the citizen has not been formally charged with anything!
The burden of proof is on the citizen.
This, by the way, is standard practice for nearly all the states and was pioneered by the federal government. They are quite proud of this little feature as can be seen in this online Department of Justice document, "ASSET FORFEITURE". Here is a verbatim quote from that document:
The Advantages of Civil Forfeiture
Although tracing is a complex process, prospects for successful forfeiture are eased considerably by the procedural benefits of civil process. The most obvious feature is the lower burden of proof confronting enforcement officials: proof by a preponderance of the evidence rather than beyond a reasonable doubt.(8) Furthermore, under federal law and some state legislation, the burden of proof is placed on the claimant rather than the government.(9) Thus, enforcement officials need not achieve certainty in their tracing efforts. They need only satisfy a relaxed standard of proof. This is an advantage of enormous consequence, as many cases turn on the burden of proof. Moreover, even if criminal prosecution was precluded by operation of the exclusionary rule, civil forfeiture may still be possible. Although the exclusionary rule applies to forfeiture proceedings, tainted evidence may still be sufficient to meet the lower burden of proof.(10) Indeed, civil forfeiture may be a viable option despite an acquittal on criminal charges.(11)
Without the burden of proof on their shoulders, the district attorneys are in the position of having citizens voluntarily giving up on getting their property back. This is because of the expense involved in suing the government.
The Distribution of the seized loot is also a bit slimy.
The loot is divvied up this way: 60 percent of it goes to the law enforcement agency that seized the property, 20 percent goes to the district attorney, and the remaining 20 percent goes to state judges' "Judicial Expense Fund" -- whatever that is.
It doesn't take a rocket scientist to figure out with the loot being divided up that way, your ass is hamburger!
Soon after the "Dateline" broadcast, which was watched by an estimated 12.7 million households and finished in the top-10 of prime-time television shows for that week, state and local tourism bureaus began receiving calls from people threatening to cancel trips or conventions. Louisiana obtains a high proportion of its income from tourism, including the Super Bowl in late January and Mardi Gras in February. Lieutenant Governor Kathleen Blanco, head of the state's tourism office, estimated the show could cost Louisiana $150 million.
The Louisiana House Criminal Justice Committee discussed the report shortly after its broadcast. "If a quarter of this is true, it's really disturbing," said Committee Chairman Steve Windhorst (R)
Louisiana Governor Mike Foster (R) "is open to looking at changes in the law as long as they don't undermine the actual law enforcement," said Marsanne Golsby, the governor's press secretary. E. Pete Adams, executive director of the Louisiana District Attorney's Association also supports minor changes to the law to correct alleged abuses.
The drug forfeiture law was approved by voters in 1989 as a constitutional amendment and was opposed at the time by Baton Rouge's daily newspaper, the Morning Advocate. In an editorial on January 11, 1997, the Morning Advocate said the "Dateline" program showed abuses that "are encouraged by a system that anoints law enforcers with too much power and rewards them for stretching those powers." The paper also criticized state officials' calls for reform as "tame" because "they still allow motorists to be shaken down without evidence of a crime and require citizens to prove they deserve their own property back." In addition, the paper said the system "tempts prosecutors to go easy on real drug lords by making deals to keep seized cars or drug money in exchange for dropping charges and letting the criminal walk." ("OUR VIEWS: La. deserves this black eye," Morning Advocate (Baton Rouge), January 11, 1997, p. 6B)
The May 1, 1997 edition of the Baton Rouge Advocate reports that Governor Foster intends to patch up the Seizure Laws to make them a little more acceptable to the public. Quoting from that article,
The changes proposed include putting time limits on detaining motorists, imposing a heavier burden of proof in forfeiture cases and requiring a court order within 72 hours in order for law enforcement to keep seized property.
If they failed to demonstrate probable cause to hold the property, it would immediately be released to the owner.
Law enforcement officers also must be in marked units or be wearing uniforms.
"We all know we got a lot of bad, bad publicity," Foster said.
Foster said some questions have been raised about the accuracy of the "Dateline" report. But, he said, the state must take steps to address any problems that actually occurred.
In summary, the article said that the Louisiana politicians were considering the following changes to the law:
(Louisiana District Attorneys Association Executive Director Pete Adams said allegations were made that warning citations were being used to bargain for a consent to search.)
The May 12th issue of the Baton Rouge Advocate reports further changes to the laws, not mentioned above:
The article points out that while these changes will be a welcome improvement, they do not correct the basic flaws of the seizure laws, the primary one being that the police get to keep 60% of the take. One reason given for not correcting this flaw is that law officers have two options for processing seizures. They can go the Federal route if they don't like what the state has to offer. Federal law also allows the police to keep the bulk of the proceeds.
Well, that all sounds real patriotic, but what about the realities of actually changing the law. As has been proven at the federal level, once the enforcement have the taste of blood it is extremely difficult go get them to back off. Representative Henry Hyde has tried for years to get laws passed that would restrain asset forfeiture abuse at the federal level, without success. (In fact he has a bill before Congress now (HR 1965) that -- just like the effort in Louisiana -- started off good but was completely gutted before it ever got to a vote).
The first attempt at passing a corrective law was sponsored by Rep. Stephen Winhorst (R), as reported by the May 30 Baton Rouge Advocate. His law proposed only five changes. They were:
Next the bill went to the Louisiana Senate where more mature minds came to play. The first thing they did was to restore the formula for divvying the proceeds back to its original form. It seems that the local judges didn't think wasting it on "research" was that good of an idea.
They also took out the bond limit of $2,500.
A big hassle developed over the lack of any provision to require the state to pay court costs that an innocent citizen has to pay to get their goods back. The District Attorneys argued that there was no reason for such a law as there was a law already on the books that would allow a judge to require the state to pay the court costs if he/she felt that it should. Strangely, there is no record of this ever happening! One lawyer, Timothy Meche, pointed out that it cost the three Mexicans that had $31,729 seized from them illegally, $10,575 to get the money back.
In any case, this provision was left out of the new law.
The new law was passed with most of the meaningful actions stripped out. But a couple of things did get through: 1) Law officers now have to prove they had probable cause to search someone's car and seize their valuables, 2) A judge has to decide within 72 hours whether property can be held, and 3) Property returned has to be in the same condition it was when it was seized. Three out of seven for the people ain't bad for a legislature!
On July 27, the Baton Rouge Advocate prints a fine summary of the situation to date. If you were hoping for a change in the abuse of citizens by asset forfeiture, you got it -- it has become worse! The article reports that for a short while after the Dateline program, the stealing died down a bit. But the cops got over their shyness in a hurry. I quote from the article:
"A check of forfeiture filing shows New Orleans police seized $571,000 in cash, weapons and vehicles last year. Just in the past six months, they have taken $817,000."
Oh, well, they tried. Is that not what matters most in these times?
Apparently if you are a young, black, and have cash (over $2,000 -- per the New Orleans Capt. Juan Quinton who said, "I'm not going to take $10 out of their wallet. The threshold is $2,000...The average person doesn't walk around with that much cash in their pockets.") you are a sitting duck. The article tells the story of Daniel Andrews, a young African-American house painter who had $2,868 taken from him by the police. He had to go to court to get his money back and it took five weeks. During that time his truck was repossessed since he couldn't make the payment. Andrews says that he knows 40 people who had their money taken, none of whom were ever charged with anything, but only 7 ever got their money back. (Louisiana government's own web site tells a few nasty tales about the handling of their seizures.)
Here I quote another interesting aspect from that article about the seizure business:
Louisiana's asset forfeiture laws cover only illegal drug activity. Authorities also have at least 15 federal forfeiture laws from postal regulations to immigration laws - to use to seize property. A favorite tactic among some Louisiana parishes is to use the federal - rather than state - law to thwart people's efforts to get money back in state court.
Federal law is also a way to keep a bigger share of the cash,
Under state law, the law enforcement agency can keep up to 60 percent of the seized assets, with 20 percent going to the district attorney's office and 20 percent to the courts. But federal laws allow the enforcement agency to keep as much as 85 percent if they let the federal drug enforcement agency handle the forfeiture, Meche (New Orleans attorney) said.
Some parishes - Jefferson Parish and East Baton Rouge Parish, especially - use federal drug forfeiture laws almost exclusively, Meche said.
Others, such as Calcasieu Parish, prefer state forfeiture laws.
"If the sheriff has a good relation with the DA and the judges, he will share it with them. Otherwise they send it to the feds," Meche said.
Just who gets hurt depends an whether you talk to prosecutors or the defense attorneys.
"A lot of people throw up their hands because they are poor or unsophisticated and police get a windfall," Meche said.
The 15 federal forfeiture laws that the Federales have at their disposal may be increased shortly. According to news reports, Clinton has proposed that asset forfeiture be invoked in cases of abuse to the environment (That's strange -- they have been doing it for years!). You might want to make sure that Corvette isn't belching any black smoke out the back before you get on the road again!
About the only concern that the Louisiana politicians expressed during this whole episode was the impact on the tourist industry. In a January 4, 1997 press release, Lieutenant Governor Kathleen Babineaux Blanco (I am not making this up!) "Louisiana is among the nation's top tourist destinations, and tourism is our state's second largest industry. Let there be no doubt as to our concern for this matter."
But the populace quickly forgets. According to an August 21, 1997 press release by Blanco, "The state suffered an initial reduction of visitors in January, but rebounded quickly due to an aggressive effort of advertising and promotion initiated by her office."
So, all is back to normal (sigh). Seizures are up, the legislature was kept busy all Summer trying to look like they were making drastic changes without doing anything, and the tourist trade is flowing again.
I only have one suggestion: When you come to Mardi Gras next Spring don't come dressed as a person of African or Mexican descent with wads of money sticking out of your pocket. And for gods sake, don't drive home in a white Lincoln!
You may think it is strange that Federal grants need to be awarded to the states to support the Forfeiture and Seizure programs. You shouldn't. It is a fundamental law of nature -- as sure as the law of gravity -- that all government programs always cost money. If somehow the government should somehow get its hand on a gold mine, in full production, they would need appropriations to operate it.
Yes, the Federal Government provides grants to states to operate their asset looting programs. It is called the TREASURY FORFEITURE FUND. I quote from that document: "The total FY 1998 drug control budget request is $155 million. No new enhancements are being requested. " Aren't they sweet!
Appendix: More Examples From the Dateline Episode.
Dateline, NBC News, August 22, 1997. Transcripts of the Dateline series can be obtained by sending $7.00 to Burrelle's Transcripts, Box 7, Livingston, NJ 07039. They also have some video copies of some programs.
The Baton Rouge Advocate published a series of essays on the Dateline story and subsequent maneuverings of the Louisiana politicians. Contact them for copies (there is a small cost).
More of Leon Felkins' essays may be found on his home page, A Rational Life.