Michael Fumento

Think you’ve had a hard week?

Consider what happened to Mrs. Tina Bennis back in October of 1988. One day she finds out that her husband, appropriately named John, was arrested by Detroit police for having sex in a car with a prostitute. Then a few days later, adding insult to injury, the city seized the car as a "public nuisance." And it didn’t give it back, even though the car was half Tina’s.

This case is exceptional only in that its being heard by the U.S. Supreme Court. It will be decided later this year whether Mrs. Bennis gets her car back. It is not exceptional in the sense of being like those laws you hear about forbidding eating cherry pie in the bathtub on Sunday or some such.

Indeed, property forfeiture laws are routinely employed by states and localities around the country as well as by the federal government. Under the federal and most state civil asset forfeiture statutes, law enforcement officials can seize a person’s property without a notice or hearing if they merely have probable cause to believe it has somehow been involved in a crime.

Proceeding against the property, the government need not file criminal charges against the owner or anyone else. Because of the fiction that the property is guilty, not the owner, cases to retrieve forfeited items have such quaint names as One 1958 Plymouth Sedan v. Pennsylvania and United States v. 1960 Bags of Coffee. (No information available on whether Mrs. Olson was called to testify.) "Involvement" may mean anything from a belief that the property is contraband to a belief that it represents the proceeds of crime (even if it is in the hands of someone not suspected of a crime), that it is an instrument of crime, or that it somehow facilitates crime.

In one famous case the oceanographic research vessel Atlantis was seized off the coast of Massachusetts because a single marijuana cigarette was found in the ship’s crew quarters. In another, authorities seized a Scripps Oceanographic Institute research vessel because a marijuana cigarette was found in the locker of a sailor who had long since been fired.

But it appears that most forfeiture victims are not big guys like Scripps who can afford attorneys to take back their property, but average Janes and Joes.

Using the Freedom of Information Act, the Michigan Association for the Preservation of Property found that in 1992 Michigan law enforcement agencies used civil forfeiture in 9,770 instances, confiscating an average of only $1,434 per seizure. Property taken included 54 private homes with an average value of only $15,991 and 807 cars with an average value of merely $1,412. Poor Tina Bennis’s car was worth only $660.

While these confiscations were probably crushing to those who suffered them, they are not enough to justify the thousands of dollars it would take to hire an attorney to get the property back. You see, once the property is seized, the burden is upon the owner to prove its "innocence."

Rep. Henry Hyde
(R-Ill.)

As Rep. Henry Hyde (R-Ill.) points out in his 1995 book Forfeiting Our Property Rights, "In more than 80 percent of asset forfeiture cases the property owner is not even charged with a crime yet the government officials can and usually do keep the seized property."

One of the most pernicious aspects of civil forfeiture law is that the property seized often benefits the seizer. During the Holy Inquisition, many a person went to his or her death because some official coveted their property. Unfortunately, that’s not entirely a thing of the past as the Donald Scott case shows.

In 1992, federal, state, and local law enforcement officials raided Scott’s Malibu home on his 200 acre ranch under the pretense that he might be growing marijuana. Brandishing a gun to stave off what he thought were criminal intruders, he was shot to death.

In fact, Scott was passionately anti-drug. His "crime" may have been his repeated refusal to sell his scenic ranch to the National Park Service. The Ventura County district attorney concluded that "the Los Angeles County Sheriff’s Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government."

Civil forfeiture has allowed state and federal agencies to line their pockets with loot. The amount deposited in the Department of Justice’s Assets Forfeiture fund has increased from $27 million in 1985 to $556 million in 1993. The Treasury Department’s Forfeiture Fund took in $198 million in 1994.

Civil forfeiture needs to be seen for what it is, an end run around constitutional protections that begs for abuse. The notion that property can commit crimes is absurd. (Cars don’t solicit prostitutes; people do.) Forfeiture can be a valuable weapon in sucking the profits out of a criminal enterprise.

But the fair way to seize these is through something already on the books called criminal forfeiture. This procedure requires a criminal conviction before seizing property, eliminating much of the injustice of civil forfeiture.

True, this will eliminate those amusing case names like United States v. One Assortment of 89 Firearms. People who thumb through court reports in search of humor will just have to get their kicks some other way. We need to fight crime without taking the lives of Malibu millionaires or the clunkers of Detroit housewives.