Rep. Hyde: Guilty Until Proven Innocent

by Rep. Henry Hyde, USA Today, July 11, 1995

Now's the time to change the law that allows police to confiscate your property without recourse

(No person shall) be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.
- Excerpt, Fifth Amendment, U.S. Constitution

Federal and state officials now have the power to seize your business, home, bank account, records and personal property--all without indictment, hearing or trial. Everything you have can be taken away at the whim of one or two federal or state officials. Regardless of sex, age, race or economic situation, we are all potential victims.

Just ask Willie Jones, owner of a Nashville landscaping business. In 1991, he made the mistake of paying for an airplane ticket in cash--behavior deemed to fit a drug courier profile. Jones was detained and his luggage searched. No drugs were found. But in his wallet was $9,600 in cash. The money was seized, but Jones was not charged with any crime. After two years of legal wrangling, Jones' money was returned.

During a fruitless seven-hour search for drugs aboard Craig Kline's new $24,000 sailboat in 1989, federal agents wielding axes, power drills and crowbars nearly destroyed his boat. No evidence of contraband was found. The boat was sold for scrap, and only after Congress intervened did Kline receive a reimbursement of over $9,100--a third of the boat's value.

Over the course of several years, Florida police routinely confiscated cash (an estimated $8 million total) from motorists who fit profiles of drug couriers. Criminal charges rarely were filed in these cases, and in only three did individuals have funds returned.

Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use--all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed. Consider the following:

*Confiscation but no crime: According to one estimate, in more than 80% of asset-forfeiture cases the property owner is not charged with a crime, yet government officials usually keep seized property.

*A flimsy standard of proof: To justify its seizure, the government need only present evidence of what its agents see as "probable cause." This is the same minimal standard required to obtain a search warrant, which allows police only to seek evidence of a crime, not to permanently seize property. Even worse, under current law the burden of proof then switches to the property owner, who must establish by "a preponderance of the evidence" that his or her property has not been used in a criminal act.

*Guilt by ownership: The basic American presumption--innocent until proven guilty--has been reversed. Property owners who lease apartments, cars or boats risk losing their property because of renters' conduct over which the owner has no control--and sometimes, by law, can have no control.

*Perverted procedures: To contest government forfeiture, owners are allowed only days in which to file a claim and post a 10% cash bond based on the value of the property. Even if the owner gets his property back, the government is not liable for damage.

*Questionable official conduct: Perhaps worst of all, some police and prosecutorial authorities are engaging in questionable conduct themselves. In 1992, former New York City police commissioner Patrick Murphy admitted that "the large monetary value of forfeitures ... has created a great temptation for state and local police departments to target assets rather than criminal activity."

Criminal-asset forfeiture--following a criminal conviction--is an appropriate punishment of the guilty who have been accorded due process. Civil forfeiture even has a proper place in the prosecution of the war on drugs, but not as it's now being widely abused.

Happily, changes are on the way. Beginning this autumn, the House Judiciary Committee begins work on much-needed reforms to federal seizure law.

The legislation, among other things, revives the notion that property, like individuals, is innocent until proven guilty; allows owners to recover for damage done to property while it is in the custody of law enforcement agencies; protects innocent property owners unaware of illegal activity; and extends the period of time for appeal of a seizure from 10-20 days to a more reasonable 30 days.

Reform is long overdue.

Rep. Henry J. Hyde is author of Forfeiting Our Property Rights: Is Your Property Safe From Seizure?