Some Former Justice Department Officials, Federal Prosecutors Warn of Forfeiture Abuses

FORFEITURE June 1993

Some former Justice Department officials and federal prosecutors have joined the growing chorus of critics warning that forfeiture is being abused and is out of control (Stephen Labaton, "Seized Property In Crime Cases Causes Concern," New York Times, 5/31/93, p. 1).

Criticism of forfeiture has grown in recent months, with legislators from Rep. Henry Hyde (R-Illinois) on the right to Rep. John Conyers Jr. (D-Mich.) on the left joining their voices in protest. Banks and loan companies have also been lobbying against the practice, noting that they have become victims of government policy because seized properties such as homes, cars, and boats are the collateral for loans to the accused. The Supreme Court has ruled four times this term to rein in the scope of forfeiture, emboldening judges to criticize its abuses and excesses. Now, even former Justice Department officials and federal prosecutors are joining the chorus of critics, according to the Times.

Former federal prosecutor David Smith, the author of the leading treatise on forfeitures, says forfeitures have become an institutionalized and corrosive influence on law enforcement. Because law enforcement agencies are allowed to keep all or much of the seized booty, the process becomes an inherently self-serving conflict of interest for the agencies involved. And because asset seizure reverses the burden of proof, requiring the accused to prove that the property was not the proceeds of or used to facilitate a crime, there is little pressure on law enforcement to build strong cases before moving to seize assets. No criminal conviction or even criminal charges are required; law enforcement need only show the there was probable cause to believe the asset facilitated or was the proceeds of a crime. Most cases involve drug crimes.

Michael Zeldin, former head of the Justice Department's asset forfeiture office, said he saw the policy distorted by budget concerns. "We had a situation in which the desire to deposit money into the asset forfeiture fund became the reason for being of forfeiture, eclipsing in certain measure the desire to effect fair enforcement of the laws as a matter of pure law enforcement objectives."