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Forfeiture Reform and United States v. Bajakajian
 By Steven L. Kessler Article Posted 7/30/98To paraphrase a major credit card company: Was it the merits, or themiles, that prompted the majority of the Supreme Court to side with thedefendant in United States v. Bajakajian?When I received a call on June 22, 1998 from a reporter asking me tocomment on the Supreme Court's decision in Bajakajian, I asked her whoauthored the decision. Clarence Thomas, she replied. After a long pause, Isaid softly: Another in a string of recent questionable decisions.Actually, she said, the Court affirmed the Ninth Circuit's decision in favor of the defendant. Unbelieving, I asked her to fax the decision to me. Sureenough, she was right.There are many aspects of Bajakajian that are remarkable. Most notably, itis the first time ever that the Supreme Court has struck down a fine asunconstitutionally excessive. When placed in the context of the number of cases reviewed by the Court each term, that is truly significant.Almost as notable as the substance of the decision is that it represents thefirst time ever that Justice Thomas has joined, let alone authored, adecision with the "liberal" segment of the bench, namely, Justices Stevens,Ginsburg, Breyer and Souter.That Thomas should be the one to break from the conservative block on aforfeiture issue, however, is less surprising when placed in the context of some of his past decisions. Just five years ago, in United States v. JamesDaniel Good Real Property, Thomas, concurring, pronounced his "distrustof the Government's aggressive use of broad civil forfeiture statutes." "I amdisturbed," he continued, "by the breadth of the new civil forfeiture statutes. . . which subjects to forfeiture all real property that is used, or intended tobe used, in the commission, or even the facilitation, of a federal drugoffense." Notably, "ambitious modern [forfeiture] statutes and prosecutorialpractices have all but detached themselves from the ancient notion of civilforfeiture". Hence, "it may be necessary . . . to reevaluate our generallydeferential approach to legislative judgments in this area of civil forfeiture."
 
In Bajakajian, Thomas made clear his belief that the government's currentforfeiture practices are not blessed by history. Although his opinion tracesthe history of forfeiture, Thomas noted that it was only in 1970, about thetime of the advent of the Racketeer Influenced and Corrupt organizationsAct (RICO), that the government began imposing criminal forfeiture of thetype at issue here, as opposed to the civil, in rem forfeiture proceedings,which are based on the legal fiction of "guilt" of the subject property.Indeed, it was the "War on Drugs" that escalated the use of forfeiture as anaccepted tool of law enforcement.It seems, therefore, that at least Justice Thomas is tired of the expansiveuse of forfeiture by the government. Ironically, the statutes once limited tocombat organized crime and to liquidate drug lords and money launderersare currently the preferred instruments utilized by the government when itdoes not have sufficient evidence of criminal activity. In approximately 85percent of all forfeiture cases, the property owner is never charged with acrime! Instead, the forfeiture of his property is his "punishment". That isunsettling, and outrageous, especially when the purpose of forfeiture was"to take the profit out of crime." Forfeiture is now a business for thegovernment, making the government and its agencies full financialpartners in the largest "business" in the country.One of the more alarming aspects of our current forfeiture scheme is that itpermits law enforcement agencies to keep the proceeds of their forfeitures.This creates an overwhelming financial incentive for abuse, one that wouldtempt even the most honest cop. In one county in Arizona, for example, astatute provides that a police officer will receive a salary as long as thereare enough funds in the forfeiture account to pay his salary. The localmedia coined this "collars for dollars."On the federal level, forfeiture is fund raising at its best. In 1993, the UnitedStates Attorney for the Southern District of New York brought in close to$50 million, $17 million more than the office's annual budget. The U.S.Attorney in the Eastern District of New York collected more than $31.3million from forfeiture connected to criminal activity in the year endingSeptember 30, 1994. The office's operating budget was $26 million. In thefiscal year ending in September 1996, the Southern District of New Yorkcollected $410 million, including $352.3 million in criminal fines,assessments and bail bond forfeitures, $17 million through forfeiture of criminals' assets and nearly $41 million in civil judgments. Who says crimedoesn't pay?More and more courts are finding fault with the government's methods.
 
Unfortunately, at least for now, most courts seem unwilling to take thatextra step and say so. After all, what's the harm? As long as there is somesuspicion of illicit activity, why quibble about criminal guilt? As the U. S.Attorney's office argued in a case involving a substantial amount of cashfound in a safe deposit box in a bank, "only a criminal would keep suchmoney in a safe deposit box." Now, that's a legal argument laden withevidence. Forget tracing the money to a crime, or some modicum of proof connected to illegal activity. Where there's smoke, there's money in theforfeiture coffers.It is noteworthy that most forfeiture proceedings nowadays are civil. Theyare commenced by summons and complaint in civil term before a judgeaccustomed to civil proceedings. Yet the plaintiff is a prosecutor, thedefendant is either a criminal defendant or the property alleged to beinvolved in criminal activity, and defense counsel — if there is one — ismore often than not a criminal defense attorney, unfamiliar with theintricacies of civil forfeiture litigation. Once the prosecutor presentsprobable cause, the burden of proof switches to the defendant to prove hisinnocence or the innocence of the property. How can a civil court not beinfluenced by all of this? After all, the government would not sue aninnocent person. Would it?After the Supreme Court twisted logic on its head last year in Bennis v.Michigan, House Judiciary Chairman Henry Hyde, a Reagan Republicanfrom Illinois, introduced the Civil Asset Forfeiture Reform Act (H.R. 1835).He and Representative John Conyers, a Carter Democrat from Michiganand the ranking Democrat on the Committee, have joined hands on thisone, in an attempt to remedy some of the worst problems affecting federalcivil forfeiture laws.Changes in the proposed bill include:• placing the burden of proof on the government to prove that, by clear andconvincing evidence, the property is subject to forfeiture• providing for the appointment of counsel for property owners who cannotafford lawyers to challenge forfeitures, paid for from the Federal AssetForfeiture Fund• clarifying the "innocent ownership" defense, most specifically to state thatan owner who takes "reasonable steps" to prevent others from using theproperty for criminal activity can get his property back.
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