Forfeiture Law Casts a Shadow on Presumption of Innocence : Legal system: Government uses the statute to seize money and property believed to be linked to narcotics trafficking. But critics say it short-circuits the Constitution.
When Carl and Mary Shelden sold their home and agreed to carry a $160,000 note, they had no idea they were about to be trapped in a government web that would cost them almost everything they owned.
In 1979, the Sheldens made the mistake of selling their $289,000 house in Moraga, Calif., to a man later convicted under a federal law that permits the government to seize his property as the product of his ill-gotten gains.
The fact that the Sheldens had nothing to do with the crimes and were the legal owners, courtesy of the unpaid mortgage, meant nothing. After a 10-year court battle, they are virtually bankrupt. They got back the house, but it was so badly damaged that it made little difference.
“Everything we worked for was in that house,” said Carl Shelden, a 52-year-old disabled shoe salesman. “And this is the United States. We don’t know whether we want to stay in this country anymore.”
The Sheldens are not unique. Authorities across the nation are coming under fire from citizens whose homes, cars, cash and other property were seized in America’s war on drugs.
Prosecutors and law enforcement officials insist the program, included in the Comprehensive Crime Control Act of 1984, is helping them fight the drug war. They say the seizures hurt dealers where it counts--in the pocketbook.
“This is a very powerful law enforcement weapon,” said Cary Copeland, who heads the Executive Office for Asset Forfeiture at the Justice Department in Washington. “We think it is being operated well.”
But alleged abuses make big headlines. A small-town Southern sheriff seizes a Rolls-Royce from a drug dealer and uses it as his personal car. Local police in Little Compton, R.I., net $3.8 million in a drug bust and outfit their cars with $1,700 video cameras and heat detection devices for a police force of seven. The owner of a sailboat loses the craft after a crew member is caught with a small amount of marijuana.
Since 1985, federal authorities have confiscated almost $3 billion worth of cash and other property under the 9-year-old federal Asset Forfeiture Program, according to the U.S. Justice Department. Under federal civil forfeiture statutes, police may seize money and property presumed to be connected to illegal drug profits.
But a growing number of critics, including citizens, defense attorneys and civil rights advocates in California, Missouri, Florida and other states, say the law violates the U.S. Constitution and a basic tenet of the criminal justice system.
They say people whose assets are seized are treated as guilty and must prove themselves innocent to get their property back.
“Once the American public finds out what’s been going on under their noses without them knowing about it, they are going to be horrified,” said Brenda Grantland, a San Francisco attorney who spent 10 years defending forfeiture victims in Washington.
Grantland serves as counsel to a group called Forfeiture Endangers American Rights, or FEAR, with chapters organizing in New Jersey, Virginia, California and Massachusetts.
“They treated the criminal better than they treated the innocent lien holder in this case,” said Grantland, who is representing the Sheldens in their damage suit against the government.
Another case involved Jorge Lovato Jr., a computer reseller in Morgan Hill, and Rey Sotelo, a motorcycle shop owner in nearby Gilroy. Both have previous drug convictions, once had ties to a suspected drug dealer and probably do not elicit much sympathy from most people.
They say they, too, have been victims of a law that is out of control.
In July, agents swept down on Sotelo’s home and both men’s businesses, seizing company records and a Harley-Davidson motorcycle for sale on consignment at Sotelo’s bike shop. They later seized $120,000 in cash from a safe-deposit box rented to Lovato.
Police said they suspected the money was illegal drug proceeds and the motorcycle was stolen.
Neither Lovato nor Sotelo was charged with a crime.
Lovato said he keeps large amounts of cash available because he deals in cash purchases. He and Sotelo both think police targeted them because of their former ties with the key target in the raids--a man with whom they were partners in a failed export business.
Five months and $10,000 in lawyers’ fees later, Lovato got his money back.
“If you have a good lawyer, you have the power to fight them,” he said.
Sotelo, too, is bitter. “I’m not the most desirable person to look at,” he said. “I have tattoos, long hair and drive a Harley-Davidson motorcycle. After this ordeal, I believe no one is safe in this country.”
Lovato says publicity surrounding the raid has hurt his business. And Sotelo claims the emotional trauma caused his pregnant wife to miscarry the day after the raid. Both threatened to sue the government.
According to Department of Justice statistics, seizures have increased dramatically each year since the forfeiture program began. In fiscal 1991, the federal government gave $289 million to local and state agencies under the program.
Although prosecutors must prove guilt beyond a reasonable doubt, civil forfeiture can occur when there is probable cause to believe the property was connected to a crime--a far less rigorous standard.
Christy A. McCampbell, in charge of the regional office of the California Bureau of Narcotic Enforcement, said the law is a great tool for law enforcement. She said most people who claim to be innocent are not.
“We don’t seize assets unless we can connect the drug dealing to those amounts of either cash or properties,” she said. “If they can show the money was gained legitimately, then the money is returned.”
In the case of Lovato and Sotelo, she said, “We had a lot of evidence connecting them all, but the district attorney felt there was not a solid enough connection.”
Attorney Dave Michael, who specializes in getting forfeited property returned and who represented Lovato last year, said the problem is the law.
“It completely shifts the burden of proof,” he said. “Law enforcement just runs willy-nilly.”
This and other cases are part of a wave of opposition to the law that appears to be sweeping the nation.
Several legislatures are considering changes in their state forfeiture laws, most of which are modeled after the federal statute.
In September, a hearing before the House Government Operations Committee, chaired by Rep. John Conyers (D-Mich.), heard testimony from a number of the law’s victims.
Listening to their stories, Conyers said early this year that he would introduce legislation to change the law.
“The cornerstone of our system of justice is a presumption of innocence until one is proven guilty. As far as I know this is the only part of our criminal justice system that ignores the presumption of innocence,” Conyers said. “The time has come to change the law.”
FEAR believes civil forfeiture laws breed abuse and the group has proposed legal reforms that would allow forfeiture only under criminal statutes--and only after a conviction.
“Even in cases where the forfeiture victim goes to court and wins, they are destroyed by the process. Almost all of them wind up bankrupt,” Grantland said.
Just before the change in administrations, then-Deputy Atty. Gen. George Terwilliger called the asset forfeiture program highly successful and a “blessing to taxpayers.” He also announced a series of changes designed to increase public confidence in it.
“No government program can long endure, much less thrive, without public confidence and support,” he said. The changes were designed to “reflect a commitment to conduct seizures and forfeitures with restraint and scrupulous avoidance of any appearance of impropriety.”
Mike Galli, who runs the asset forfeiture unit of the Santa Clara County district attorney’s office, distinguishes between state and federal forfeiture practices. He concedes that federal agencies sometimes go overboard. But 98% of forfeitures are appropriate, he said.
Although some law enforcement agencies may look at fancy cars and money as great seizure targets, that is not what’s on his mind, he said.
“My job is not to make money. My job is to kick the dealers in their assets. . . . Putting the bad guys in jail and taking away their toys.”
Copeland, at the Justice Department, said the system is not bad. State and federal forfeiture laws are being attacked by a defense lawyers lobby for a pretty clear reason, he said.
“Defense attorneys are upset about the government separating defendants from their money, because that’s what they are accustomed to doing. They are grossly misrepresenting these cases to the media.”