Civil forfeiture is the government power to take property suspected of involvement in a crime. And unlike cases of criminal forfeiture — the seizure of ill-gotten gains after a criminal conviction — police can seize property without so much as charging the owner with any crime.
This led to some widely publicized cases, a few years back, in which black motorists were routinely pulled over by local police and relieved of large sums of cash while driving on major highways in the South. The motorists weren’t charged, since a criminal conviction requires actual evidence. Instead they were told “We’re seizing this cash because we presume it was intended to buy drugs; if you want to come back here from wherever you live and fight it out in court, good luck.”
Facing court costs and the burden of proof — the reverse of the usual order of things — few motorists bothered.
This legal sleight-of-hand is widely used but not well understood except by those who’ve been its victims. In civil forfeiture, the government actually sues the property itself, as though the property somehow committed a crime. That’s why civil forfeiture cases have unusual names, like United States v. 434 Main Street, Tewksbury, Massachusetts — an actual case involving a Massachusetts motel.
Since 1985, federal law enforcement agencies have been allowed to keep all the property and currency they seize. Before that change in law, forfeiture revenues were modest. But since the profit incentive was added, forfeiture revenues have boomed.
And under a policy called “equitable sharing,” state or local cops and prosecutors can now take property by making use of FEDERAL civil forfeiture law, even if they couldn’t do so under their own state laws.
That Massachusetts motel?
Motel Caswell is a family-owned budget motel in Tewksbury, Mass., 30 minutes outside Boston. Russell and Patricia Caswell have owned and operated the motel for nearly 30 years. The Caswells expected the motel, now mortgage-free, to provide a nest-egg for retirement.
But the U.S. Drug Enforcement Agency and Tewksbury police had other plans. They went to court to seize the entire property — worth a million dollars — because some guests staying at the motel have been arrested with drugs.
Since 1994, the Caswells have rented their rooms more than 125,000 times. Yet, because drug arrests have taken place on roughly 30 occasions over those 18 years, the drug police asked the court for the keys.
Not that the government ever claimed the Caswells themselves were guilty of any crime. The only defendant in this case was the street address! And the federal government planned to turn over as much as 80 percent of the take directly to the Tewksbury police.
Furthermore, because the Caswells had no rights as “defendants,” the onus was on them to raise the money and go to court to challenge the seizure.
And now, finally, a pleasant surprise. In a major triumph for property rights, a federal court in Massachusetts this week dismissed the civil forfeiture action against the Motel Caswell.
Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts concluded, based on a week-long bench trial last November, that the motel was not subject to forfeiture because — surprise — its owners were innocent of any wrongdoing.
“The witnesses unanimously confirmed that no efforts were undertaken to work with the Motel owner to try and reduce drug crimes at the Property prior to the institution of the forfeiture action, nor was any warning given as to the possibility of forfeiture prior to suit being filed,” found Judge Dein.
“This court finds it significant that neither Mr. Caswell, nor anyone in his family, nor anyone over whose behavior he had any control, was involved in any of the drug-related incidents. …
“Similarly of importance is the fact that there was nothing about the Motel Caswell per se or its operation that made it particularly connected to the drug crimes, other than the fact that it consisted of budget rooms that were rented to transient guests. … There was no reason for Mr. Caswell to suspect that every guest, or even a particular guest, who was coming to the Motel would engage in illegal behavior. … Courts do not expect the common land owner to eradicate a problem which our able law enforcement organizations cannot control.”
Of course, the Caswells managed to win only because someone stepped forward to help finance their fight.
“I couldn’t have fought this fight without the help of the Institute for Justice,” the Washington-based public interest law firm that went to bat for the family, Mr. Caswell says. “It is hard to believe anything like this goes on in our country, but the government goes after people they think can’t afford to fight. … The public needs to stand up against these abuses of power.”
The Problem of civil forfeiture remains widespread. In 1986, the year after the U.S. Department of Justice’s Asset Forfeiture Fund was created, it took in just $93.7 million. Today, it holds more than $1.6 billion.
Forfeiture reform remains desperately needed at all levels. “Property” doesn’t commit crimes, and Americans shouldn’t be at risk of losing their hard-earned assets except as duly specified punishment for crimes of which they’ve actually been convicted.