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Book Review: Forfeiting Our Property Rights: Is Your Property Safe From Seizure?


September 1995

By U.S. Rep. Henry Hyde. Cato Institute, 1995. 100 pages. $8.95.
Reviewed by Judd R. Spray, Research Associate, The Criminal Justice Policy Foundation

Illinois Representative Henry Hyde has written a new book, Forfeiting Our Property Rights: Is Your Property Safe From Seizure?, which was published by Cato Institute, to coincide with Hyde's reintroduction in the House of legislation to reform the government's use of civil forfeiture.

Hyde introduced similar forfeiture legislation in 1993, but since then he has become chairman of the House Judiciary Committee. This transformation in power raises the likelihood that Hyde's bill will become law. For anyone concerned with due process of law, property rights, or police misconduct, this book will provide convincing evidence that forfeiture policy is in desperate need of reform. In fact, the legislation proposed by Rep. Hyde hardly seems adequate in light of the horror stories that his book recounts.

The chapter titled "How We Got into This Mess" provides a detailed history of asset forfeiture. In medieval times, the British Crown would confiscate "deodands," or inanimate objects believed to be responsible for a person's death:

[This policy] was a response to the superstition that a dead soul would not rest until its death was avenged. ... In fact, the deodand rapidly took on the double purpose of religious expiation and forfeiture, or "amercement," similar to other exactions of the Crown aimed at raising revenues rather than at saving souls (p. 18).

Asset forfeiture in the United States never had the religious underpinnings of the deodand. The American government originally used asset forfeiture purely as a source of revenue, by seizing seafaring ships that had evaded paying customs duties. Forfeiture has been used sparingly over the years, primarily during the Civil War and prohibition. The practice of seizing property used in criminal activity was revived with a vengeance in the 1980s, however, to combat the illegal drug trade. The major problem with this boom in forfeiture cases, according to Rep. Hyde, is that "law enforcement officials are allowed to keep all the proceeds from the property they confiscate, an invitation to uncontrollable abuse" (p. 30).

Much of this book is devoted to the terrifying stories of such uncontrollable abuse. The documented cases of police abuse of the forfeiture power to collect quick cash and property are shocking:

Former Los Angeles narcotics detective Robert R. Sorbel, who headed one of the country's most productive anti-drug squads in the 1980s, testified in court that members of his task force routinely lied under oath, falsified police reports, invented fictitious informants, planted drugs, and beat suspects to get money and valuables. Twelve L.A. County police were convicted of crimes associated with this one drug unit (p. 77).

Police abuse of the forfeiture power is dangerous enough in its own right, but Hyde warns that the process often succumbs to racist and ethnic stereotypes as well. 50 miles of I-95 and 25 miles of I-4 run through Volusia County, Florida. The Orlando Sentinel reported in 1992 that of auto stops by the Volusia County Sherrif's Department, 70% of the cars had been driven by minorities; an even higher percentage of the cars that were searched, 80%, were driven by minorities; and 90% of drivers who were not arrested but whose cash was taken were black or Hispanic (p. 38).

Even when the police are not targeting ethnic and racial groups for harassment, Hyde argues, the forfeiture system is intuitively alien to the principles of the criminal justie system. Property can be seized by police not only before a conviction is obtained, but even if no charges are brought against an individual. Police need only to establish probable cause that property was used in, or derived from, a crime, and from then on the burden of proof shifts to the property owner to provide a preponderance of the evidence that it was not. Just to challenge the forfeiture, an individual must post a bond that will cover the government's costs if it wins the case.

Representative Hyde believes that police misconduct is more the rule than the exception in forfeiture proceedings. The volume of evidence suggests that profit drives law enforcement agencies to seize whatever they can from private citizens. The law is unbalanced on the side of law enforcement on this issue, which has led to far too many gross violations of individual rights.

Forfeiting Our Property Rights is ultimately designed to help Rep. Hyde promote his reform legislation, and the final chapter outlines the provisions of the "Hyde Civil Asset Forfeiture Reform Act."

His reform proposal, Hyde readily admits, is not as drastic as many reformers would like to see. John Conyers of Michigan, now the ranking Democrat on the House Judiciary Committee, has proposed legislation that would all but dismantle the civil forfeiture program (H.R. 3515, 103d Congress, 1993).

The book provides valuable information on the failings of the forfeiture system. Hyde's legislation, if enacted, will profoundly change the way law enforcement officials can approach forfeiture proceedings. The U.S. Justice Department and the National District Attorneys Association have strongly resisted forfeiture reform efforts at the State level. It is unlikely they will support Hyde's modest reforms.

[To order a copy of Defending Our Property Rights: Is Your Property Safe from Seizure?, contact the Cato Institute at 938 Howard Street, Suite 202, San Francisco, CA 94103, 1-800-767-1241.]