Rudy Ramirez never expected to become a statistic in the War on Drugs when
he set off to buy a used car, $7300 in cash at the ready, in January 2000.
Ramirez, who lives in Edinburg, Texas near the border with Mexico, had
spotted a listing for the used Corvette in a magazine and wanted it badly
enough that he talked his brother-in-law into accompanying him on a
thousand mile road trip to Missouri to make the purchase. When Ramirez was
pulled over by police in Kansas City, however, the tenor of the trip
changed.
"They asked if I had any money with me, and I said yes,"
recalls Ramirez. "I didn't think they would take it away. I had
nothing to hide." But the trajectory of the rental car, and the piles
of cash, suggested otherwise to police--who suspected him of trafficking
drugs from the Mexican border. As Ramirez tells it, he was detained at the
side of the road for hours while his car was thoroughly searched and
inspected by a drug dog. "They kept asking me, `Where are the
drugs?'" he recalls. "I told them they had the wrong guy."
The Drug Enforcement Agency's file on the case indicates that Ramirez
gave officers confused statements about both the money and his
destination, and that his extremely brief stay in a Missouri motel looked
suspicious. What's more, the drug dog "alerted" on parts of the
car, indicating that drugs could have been there at one time--which, since
it was a rental car, may or may not have anything to do with Rudy Ramirez.
Still, the search turned up no drugs of any kind, and the officers
finally told Ramirez that he was free to go--but not before confiscating
$6,000 of his money in the name of the federal war on drugs in a process
known as "forfeiture." Despite check stubs that he says prove
that the money came from a car accident settlement reached several months
before, and bank records showing that it was withdrawn from his account
just prior to the Missouri trip, Ramirez has, to this day, been unable to
get his money returned. He shakes his head as he describes it. "All I
want is my money back," he says.
Last year, almost a billion dollars worth of cash, cars, boats, real
estate, and other property was forfeited to the federal government--most
of it labeled as drug-related. And while much of this property was taken
from bona fide criminals, critics of the nation's forfeiture laws say that
too many innocent people have fallen through the cracks in a system that,
until recently, has been far too heavily slanted in the government's
favor.
Watch
a special video report on small businessman Clay Waterman, who believes he
was an innocent victim of the forfeiture laws.
Retreat is rare in our nation's drug war--which makes recent roll-backs
to the forfeiture laws all the more remarkable. In their scramble not to
appear "soft on crime," lawmakers normally seem able only to get
tougher, even amidst widespread agreement that a policy is flawed.
But on August 23rd, 2000, after a difficult seven-year
campaign by Republican Congressman Henry Hyde from Illinois, the Civil
Asset Forfeiture Reform Act finally went into effect--making it more
difficult for the federal government to seize property without evidence of
wrongdoing. It took a remarkable coalition of conservative and liberal
lawmakers, to change a law that everyone from the American Civil Liberties
Union to the National Rifle Association has recognized as flawed. And
while the reforms come too late to help Rudy Ramirez, they will help to
make cases like his rarer.
Law dictionaries define forfeiture as "loss of some right or
property as a penalty for some illegal act," and its role as a tool
in the war on drugs is clear: to hit drug dealers where it hurts most...in
the wallet. The forfeiture laws allow the government to seize property
from people it believes to be involved in drug-related activity, and then
to use that revenue to bolster the efforts of law enforcement. The concept
is simple. If you use your car, plane or boat to transport drugs, you will
lose your car, plane or boat. And if your cash was acquired through
illegal drug sales, you will lose that cash and anything bought with it.
Forfeitures, however, can fall into two categories--criminal or
civil--and due to some high-profile abuses, civil asset forfeiture has
become extremely controversial. Under criminal law, the government can
seize property as punishment only after its owner has been convicted of a
crime, and our justice system ensures that they are considered innocent
until proven guilty. But under civil law, it is the property itself--not
the owner--that is charged with involvement in a crime. What's more, that
property is considered "guilty" until proven innocent in court
by its owner, thus turning our usual system of justice on its head.
According to a report prepared for the Senate Judiciary Committee, at
least 90 percent of the property that the federal government seeks to
forfeit is pursued through civil asset forfeiture. And although forfeiture
is intended as punishment for illegal activity, over 80% of the people
whose property is seized under civil law are never even charged with a
crime according to one study of over 500 federal cases by the Pittsburgh
Press. For this reason, critics say, the system can run roughshod over
the rights of innocent property owners--and fail to distinguish them from
the guilty.
This potential for abuse is compounded by the strong financial
incentive that law enforcement has to make seizures--since they benefit
directly from forfeited property. It was the passage of the Comprehensive
Crime Control Act of 1984, part of the Reagan-era ramp-up in the war on
drugs, that first made this possible. At a federal level, the law
established two new forfeiture funds: one at the U.S. Department of
Justice, which gets revenue from forfeitures done by agencies like the
Drug Enforcement Agency and the Federal Bureau of Investigation, and
another now run by the U.S. Treasury, which gets revenue from agencies
like Customs and the Coast Guard. These funds could now be used for
forfeiture-related expenses, payments to informants, prison building,
equipment purchase, and other general law enforcement purposes.
But equally important, local law enforcement would now get a piece of
the pie. Within the 1984 Act was a provision for so-called "equitable
sharing", which allows local law enforcement agencies to receive a
portion of the net proceeds of forfeitures they help make under federal
law--and under current policy, that can be up to 80%. Previously, seized
assets had been handed over to the federal government in their entirety.
Immediately following passage of the Act, federal forfeitures increased
dramatically. The amount of revenue deposited into the Department of
Justice Assets Forfeiture Fund, for example, soared from $27 million in
1985 to $644 million in 1991--a more than twenty-fold increase. And as
forfeitures increased, so did the amount of money flowing back to state
and local law enforcement through equitable sharing.
Some say that because of the resulting windfall, state and local law
enforcement has become as addicted to forfeiture as an addict is to
drugs--making property seizure no longer a means to an end, but an end in
itself. In 1999 alone, approximately $300 million of the $957 million that
the Treasury and Justice Department funds took in went back to the state
and local departments that helped with the seizures. And since 1986, the
Department of Justice's equitable sharing program has distributed over $2
billion in cash and property. Additional revenue comes from forfeitures
done under state law, which adds to the total intake. According to a study
by the Bureau of Justice Statistics, state and local law enforcement
reported receiving a total of over $700 million in drug-related asset
forfeiture revenue in 1997 alone--with some departments single-handedly
taking in several million dollars for their own use.
The potentially corrupting influence of this flow of cash is apparent
from a situation currently unfolding in the state of Missouri--where, in
what has become a highly controversial practice, mirrored across the
country, police are circumventing their own state law in order to continue
reaping the financial rewards of civil asset forfeiture.
In 1993, in response to some widely-publicized police abuses, the
Missouri State Legislature passed a sweeping reform of the state's civil
asset forfeiture laws. The new state law, one of the most stringent in the
nation, required that a property owner be convicted of a felony in court
before property related to that crime can be forfeited. What's more, the
law required all proceeds from the forfeitures to go to a state education
fund--not back to law enforcement. The reforms provided strong protection
to innocent property owners, making it much harder to forfeit property
under Missouri law than under federal law, and eliminated the police
profit motive for making seizures.
In the face of these restrictions, however, Missouri's law enforcement
has implemented what critics call an elaborate shell game that allows it
to continue doing forfeitures under the laxer, federal laws--and to
continue receiving a share of the profits. The practice walks a very thin
semantic line, relying on the distinction between "discovering"
and "seizing" cash. Upon discovering cash during a traffic stop
that they believe to be drug money, for instance, a local policeman or
Missouri Highway Patrol officer will not actually attempt to
"seize" it. Instead, they call a federal agent to the scene to
perform the seizure, virtually guaranteeing that the case will be
processed under federal law and that their department can receive a share
of the proceeds instead of sending those proceeds to the state education
fund.
A 1999 report by Missouri State Auditor Claire McCaskill, in fact,
found that in spite of the reforms to Missouri state law, 85% of the money
and property seized on investigations involving Missouri law enforcement
is still handled under federal forfeiture laws. "Forfeiture is as
American as apple pie," says McCaskill, who strongly supports its use
as a tool in the war on drugs. "The problem is when law enforcement
starts circumventing state law in the process." Missouri's
legislature has been considering reform bills that could end the
practice--an issue that will most likely be revived in the coming
session--and the Kansas City School District has filed a lawsuit against
all of Missouri's law enforcement.
Bob Boydston, the Sheriff of Clay County, Missouri, says that he has
never had to make a decision between using the state versus the federal
system--and has followed the state statutes since he took office in 1993.
He can definitely understand, however, why his colleagues opt for the
federal system when faced with the choice. "One system will
ultimately mean that the proceeds leave the agency, while the other
returns some of the money to be used to fight illegal drug dealing,"
he explains. "After law enforcement spends long, hard, dangerous
hours working a case, it seems natural to me that they make the choice to
go the federal route. It's depicted as some kind of sinister plot and plan
to circumvent statutes and keep money from the schools. That's not the
case at all."
Boydston's county of 15 towns and 180,000 people just north of Kansas
City has experienced the benefits of forfeiture proceeds first-hand.
Assisting in just one federal forfeiture, of which Clay County's share was
$94,000, has allowed the sheriff's department to train a drug dog, and
maintain a military surplus helicopter that it uses for surveillance work,
highway pursuits, and support for the efforts of the department's SWAT
team. These are expenses that Boydston says the department could never
have afforded otherwise over the past three years--but that are crucial to
helping combat the county's extensive methamphetamine
problem.
Financial incentives aside, many of Missouri's law enforcement officers
say that they choose to process forfeitures under federal law for another
reason as well: while federal law gives them a fighting chance of taking
the profits out of drug dealing, state law does not. They feel strongly
that, due to the felony conviction requirement, the new state law allows
too many drug dealers to walk free, unpunished, with piles of cash, when
there is not enough concrete evidence to convict them of a drug-related
felony.
But it is the laxer provisions of the federal law that, until recently,
have created enormous hardships for innocent people caught up in the
system. Many property owners have faced years of difficult and costly
litigation before winning back money, cars, homes and businesses that were
never involved in a crime. And others have never had their property
returned at all. It is these cases, tracked by groups like the American
Civil Liberties Union and the National Association of Criminal Defense
Lawyers, and highlighted in congressional hearings, that have fueled the
drive for reform at a national level.
In many cases, people like Rudy Ramirez have been suspected of
involvement in drug trafficking for no more reason than its being
"unusual" in this day and age to possess a thick wad of cash.
Take the example of Willie Jones, a landscape architect who was carrying
$9,600 through the Nashville airport on his way to buy shrubbery. Or the
case of physician Richard Lowe who--distrustful of banks, and with vivid
memories of the Great Depression--stockpiled $317,000 in his home in
Alabama before finally depositing it in a bank, leading the government to
confiscate a full $2.5 million of his life savings for this suspicious
behavior.
Of particular importance to conservative lawmakers, small businesses
have suffered under these laws as well. In one well-publicized case,
federal agents sought to forfeit the Red Carpet Inn in Houston, Texas
when, despite the hotel staff's frequent contact with police, the local
U.S. attorney said the owners had "tacitly approved" of drug
dealing on their property and not done enough to prevent it. The hotel's
owners were not charged with any crime, but had rejected police
"solutions" to the problem such as raising their room rates to
deter drug dealers from staying there.
Henry Hyde has called stories like these "Kafkaesque," and
recalls that when he first learned of the nation's civil forfeiture
practices, he considered them "more appropriate for the Soviet Union
than the United States." What's more, he's said, "People take
their due process rights for granted...they have no idea that these laws
exist."
Critics agree that the main problem with the civil asset forfeiture
laws, before the recent reforms, was the low burden of proof required to
seize property. A seizure could be made on the basis of mere suspicion,
known as "probable cause", that the property was involved in a
crime--and that is no more evidence than is required to obtain a search
warrant. No arrest, let alone conviction, was needed. It was then up to
the property owner to prove by "a preponderance of the
evidence", a more difficult standard to meet, that their money, or
car, or home, was not bought with drug money or used to commit a
drug-related crime, and should be returned.
Furthermore, the high cost of contesting a forfeiture often posed an
insurmountable problem, as it did for Rudy Ramirez. In order to take his
case to court, Ramirez would have had to post a "cost bond" of
10% of the value of the property seized--and if he lost the case he would
lose the bond. But for a landscaping truck driver who is barely getting
by, scraping together another $600 was no minor hurdle. "I don't have
money to be wasting," says Ramirez. What's more, unlike a defendant
in a criminal trial, Ramirez was not entitled to a government-appointed
attorney if he could not afford a private lawyer. He would have had to
hire the attorney at his own expense--and as Bruce Simon, a Missouri
lawyer to whom Ramirez went for help, explains, no lawyer in the country
would likely take that case.
"Generally speaking, it's not worth it unless you've had
twenty-five to thirty thousand dollars taken away," says Simon. It
would have cost a minimum of around $10,000 to take a case like Ramirez'
to court, says Simon, so the $6,000 he would have gotten back wouldn't
even cover his lawyer's fees. As a result of these blunt financial
realities, Simon has seen many innocent owners simply give up without a
fight when faced with a system that provides "no effective
remedy" for them.
Eighty percent of forfeitures, in fact, go uncontested in court--a
statistic that the government feels suggests that the owners are guilty,
and do not wish to force the issue, but some others feel shows that the
system is stacked too heavily in the government's favor. According to a
Justice Department source, the average value of a DEA seizure in 1998 was
around $25,000. And lawyers say this confirms that many seizures are small
enough to fall below the amount they would consider worthwhile to contest.
In the absence of a court case, the only recourse left to someone like
Rudy Ramirez is to petition the DEA directly to return the money--a
so-called "administrative" solution. But Bruce Simon asks, how
likely is the DEA to believe that its agents have made a mistake?
"That would mean the agency passing judgement on itself," he
explains, saying that most of those claims "never get anywhere."
According to the DEA's own estimates, in fact, only 3-5% of such petitions
are ever granted.
This bleak picture began to change in April of this year, however, when
the Civil Asset Forfeiture Reform Act was finally signed into federal law.
The success caps a nearly decade-long crusade, and is the result of
cooperation between some truly unlikely allies who, only by working
together, could overpower Congress' fear of looking "soft on
crime". Henry Hyde, a conservative Republican from Illinois and
chairman of the House Judiciary Committee, was joined by the House
Judiciary Committee's ranking Democrat, John Conyers of Michigan, to
spearhead the effort--which united politicians as diverse as outspoken
conservative Bob Barr of Georgia with Democratic liberal Barney Frank of
Massachusetts. An equally impressive coalition formed in the Senate around
the issue.
Joining in support were organizations as wide-ranging as the American
Civil Liberties Union, the National Rifle Association, the American
Bankers Association, the National Association of Criminal Defense Lawyers,
the United States Chamber of Commerce, the Americans for Tax Reform, and
organizations representing groups like pilots, boaters and hotel owners.
The new law requires the government to have much stronger evidence of
wrongdoing before it can seize a person's property--raising the burden of
proof from "probable cause" to "a preponderance of the
evidence" that the property is linked to a crime. What's more, it
shifts the burden of proof to the federal government, meaning that the
government must now prove in court that the property was involved in
crime...instead of the property owner needing to prove the opposite.
Equally important for people like Rudy Ramirez, the new law removes
many of the onerous financial hurdles involved in contesting a forfeiture.
It refunds lawyers' fees to property owners who successfully challenge a
seizure in court, and in some cases provides government-paid lawyers to
the indigent. Furthermore, it eliminates the requirement that property
owners post a sometimes hefty bond before they can fight to get their
property back.
The Justice Department and national law enforcement groups lobbied
furiously to prevent passage of the original bill put forward by Henry
Hyde, concerned that it jeopardized a key weapon in the war on drugs.
Hyde's original version, in fact, contained much stronger provisions--and
sought to raise the burden of proof on the government to "clear and
convincing evidence" that the seized property was criminally-linked.
Ray Dineen, Director of the Treasury Department's Forfeiture Fund,
voiced concerns early on about the potential weakening of a valuable law
enforcement tool. He says that the country must not forget the purpose of
seizing cars, offshore bank accounts, planes, boats, and other property
that supports the drug trade, which is to dismantle a criminal
infrastructure that was illegally acquired in the first place. He adds,
"The fact that revenue generated by this effort is subsequently used
to support law enforcement initiatives is smart policy--not a program of
unchecked `taking.' We're not looking for money, we're looking for the
impact on criminal enterprises."
In the end, both the Department of Justice and the Department of the
Treasury have come out cautiously in favor of the final compromise
legislation--saying that raising the burden of proof needed to make a
seizure is sensible protection for innocent property owners. Still, they
predict a loss of revenue, and have concerns about the possibility of
frivolous court cases being brought by criminals under the new law.
Civil rights activists like the ACLU aren't entirely satisfied either,
which may be the sign of a good compromise. "We think this just
begins to address the problem," said Rachel King, legislative counsel
of the ACLU, when the law first passed. "The situation is so bad that
even modest reforms are important."
Make no mistake about it, the recent reforms do not address the issue
that many feel is central to most abuses of civil asset forfeiture: the
financial incentive for law enforcement to make seizures. Still, the new
law will help ensure that legitimate use of a powerful tool in the war on
drugs violates the rights of fewer innocent people.
"This bill is one we can all be proud of," Henry Hyde said of
the final version. "It returns civil asset forfeiture to the ranks of
respected law enforcement tools that can be used without risk to the civil
liberties and property rights of American citizens. We are all better off
that this is so." And in the war on drugs, that is a bold step
forward--and a kind of reform that is all too rare.
