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Laws That Are Criminal


Until recently, forfeiture laws were a part of the English and colonial past. They were revived during the Civil War, when — in 1862 — an Abolitionist Congress permitted the president to seize the homes and estates of Confederate soldiers. This power was used especially during the postwar Reconstruction period (a time of darkness deliberately kept obscure by our schools today) when numbers of injustices were not only allowed, but encouraged.

In 1970 the ancient principle of government confiscation was restored in this land by the passage of “racketeering” laws that targeted the assets of convicted criminals. That step was applauded by many as a weapon that would help win the “war on drugs.”

Yet it constituted an abrupt break in our traditional concept of crime and punishment. The racketeering laws, such as RICO [Racketeer Influenced and Corrupt Organizations], created extraordinary penalties beyond previous statutory limits. Special penalties, one might say, for special people. In the past, all persons convicted of crimes in the United States were punished within the same limits by either jail terms or fines — or both.

In recent years this practice was changed not only by RICO but also by the introduction of “community service” in which some persons convicted of crimes were “sentenced” to do civic good works under supervision by civilian institutions or groups. In other words, some offenders were treated as superior persons allowed to remain active in the community rather than undergo the humiliation of imprisonment.

The 1970 authorization of the confiscation of all assets upon conviction of a drug-related crime was an extension of this elastic concept of punishment beyond the traditional limits of prison and a fine. The effect upon an entire family (children, et al.) such a confiscation from drug dealers might entail was, in this new extension of punishment, apparently beneath notice.

Anyone who expected this unusual leniency on one end and increased severity on the other to settle matters does not understand the obsessive drives of our legal bureaucracy.

The next step came when prosecutors demanded that lawyers who were paid by persons convicted of drug dealing turn their fees over to the authorities, on the grounds that such monies had been illegally earned. To lawyers’ protests that everyone is entitled to a defense, the authorities responded that public defenders (paid by the courts) were available. I don’t know the present status of that aspect of drug defense, but the idea that a lawyer should be stripped of his earnings because of a client’s conviction is, obviously, a way to prevent a defendant from having the best defense he can afford. Of course, this was the point of the prosecutors’ demands. The prosecutors apparently believed that too many drug dealers were “beating the laws” by winning in courts!

The next steps, in 1984, were into forfeiture. For the first time, the government was authorized to seize a suspect’s possessions without a warrant, without a charge, without a trial and without a conviction.

As if to encourage such confiscations, the law allowed such proceeds to be used by law-enforcement agencies to expand the war on drugs and crime. The theory was that this would be “the ultimate poetic justice, with criminals financing their own undoing” (Presumed Guilty: The Law’s Victims in the War on Drugs by Andrew Schneider and Mary Pat Flaherty, The Pittsburgh Press, August 11-16, 1991).

In this procedure, the possessions, not the owners, are legally accused of a crime. This enables the authorities to move forfeiture out of criminal and into civil courts. One result is that dockets have appeared “looking like purchase orders: United States of America vs. 9.6 acres of land and lake; U.S. vs. 667 bottles of wine. But it’s more that just labeling change. Because money and property are at stake instead of life and liberty, the constitutional safeguards of criminal proceedings do not apply” (Ibid).

This sweeping federal mandate opened gates for states to follow. Since 1984 more than 100 statutes have been enacted on the state and federal level, authorizing the seizure of possessions. Nor, predictably, have they been confined to persons suspected of drug dealing (or possession). Today, forfeiture laws cover gambling, fraud, importing tainted meats, carrying intoxicants in Indian land and money laundering (a charge as amorphous and evasive as smoke).

What does all this mean to the citizenry? It means that the home of Judy Mulford of Lake Park, Florida, was stripped of all its furnishings because the government argues that her divorced husband once stored cocaine there. As if a bare house to share with her teenage twins is not enough, a “forfeiture jury” ruled she must also lose the house, although she bought it herself with her own insurance money. . . .

It means that Johnny Sotello, a Mexican-American whose truck overheated on the highway in Jefferson Davis County in Mississippi, made the mistake of accepting police help. (How could he refuse?) They asked permission to search his truck and he consented. They pulled a door panel open, and said it could be carrying cash and he said that he was carrying $23,000 because he attended heavy-equipment auctions and bought secondhand equipment. They seized the truck and the cash, and told him that he’d have to go to court to obtain their return. . . . He did, and showed auctioneer’s receipts and his license as an equipment buyer. After two years of expensive litigation, he finally accepted the return of half the money and the truck. The police kept $11,500.

It means that Joseph and Frances Lopes are in danger of losing their home four years after their mentally retarded son pleaded guilty to growing marijuana in their backyard for his own use. The son was given probation because it was his first offense and was ordered to see a psychologist. He never grew marijuana again. Four years later, a Maui detective examined old cases for “missed forfeiture opportunities” and came across the Lopes’ file. They arrived in a car and a van, met 60-year-old Frances in the garage and said, “Mrs. Lopes, let’s go into the house and we will explain things to you.”

Frances Lopes said, “They sat in the dining room and told me they were taking the house. It made my heart beat very fast.” Their reason: the Lopeses knew their son had committed a crime on their property. When this was written by the Pittsburgh Press, the case was still in the forfeiture court. But the Lopeses have been warned not to touch anything the police videotaped.

The practice of forfeiture has spawned, since 1984, a network of informants and specialists. One Hell’s Angel became a millionaire by informing. The Asset Forfeiture Fund of the U.S. Justice Department in 1990 paid $24 million to informants as their share of forfeited items. Airport-counter clerks, operators of security x-ray machines report “suspicion” persons paying tickets in cash. Many are minorities. Clerks for carriers such as UPS and Continental Airlines’ Quik Pak have been known to open “suspicious” packages and report their findings to the police. Rewards to informants amount to ten percent of the value of confiscated property.

Not even the dead are safe. In Fort Lauderdale, Florida, a “confidential” informant told police that George Gerhardt accepted $10,000 to allow drug dealers to use a dock at his home to unload cocaine. The police were told this three months before Gerhardt died of cancer. They waited for six months after his death to oust his heirs from the home he and his family occupied for twenty years, to change the locks, and to rent it out for $2,200 a month. In other words, they seized — without a warrant, without a charge, without a trial, on the testimony of a secret witness — a $250,000 home. In life, Gerhardt had operated a marina and was heir to a substantial fortune. He died aged 49. His heirs were appalled. “I didn’t think anything like this could happen in this county,” said one. The estate’s attorney examined Gerhardt’s tax returns and could find no discrepancies. Its motivation, said Robyn Hermann, assistant chief of the civil section for the U.S. Attorney’s office in the Southern District of Florida, “is not so much to punish at this stage. The motivation is really to use the proceeds from the sale of the property to prevent other drug offenses.”

Meanwhile, the cases go on. The Pittsburgh Press produced 40 tabloid-sized pages of them. The seizures have included planes, boats, cars, houses — all from average citizens without criminal records, amounting to millions of dollars. The rationale is that this is a necessary part of the war on drugs. But, say the Pittsburgh Press reporters, “80 percent of the people who lost property to the federal government were never charged. And most of the seized items weren’t the luxurious playthings of drug barons, but modest homes and simple cars and hard-earned savings of ordinary people.”

There is a term for this sort of behavior by a government: it is called totalitarianism. The fact that it speaks with an American accent and is conducted under the color of law does not alter that essence. That the Congress of the United States and various state legislatures could enact such legislation is frightening. That most of the media has remained silent is evidence of how widespread a collapse of honest reporting has overtaken our “free” press. . . .

These are steps into tyranny, and there is no sophistry that can gainsay it. The words of Lord Acton, delivered in 1866, after our terrible Civil War and while an abolitionist Congress was intent upon vengeance in the name of justice and punishment in the name of tolerance, rings today even more forcibly than when delivered:

“The spurious liberty of the United States is twice cursed, for it deceives those whom it attracts and those whom it repels. By exhibiting the spectacle of a people claiming to be free, but whose love of freedom means hatred of inequality, jealousy of limitations to power, and reliance on the States as an instrument to mould as well as to control society, it calls on its admirers to hate aristocracy and teaches its adversaries to fear the people.”

This is an excerpt of an article that appeared in the July 1993 issue of the Chalcedon Report, P.O. Box 158, Vallecito, CA 95251.

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    Mr. Scott is resident senior staff writer for the Chalcedon Report and author of a variety of books and essays on historical, cultural, social, and political subjects.