Guilty Unless You Spend Millions Proving Your Innocence
Gary Hull has an excellent piece at The Fiscal Times explaining the evil nuances of civil asset forfeiture -- a polite name for government theft:
Throughout the country, legions of bureaucrats, DEA agents, and local law enforcement scour the country for lucrative property (and cash) to steal from innocent citizens. They do so under a capricious law known as "civil asset forfeiture" (CAF) - the bizarre notion that a thing or property "acted wrongly," and thus is being charged with a crime.
Asset forfeiture is used by federal and state officials to seize cars, boats, cash, houses, businesses - all on the grounds that the asset might have been used or could conceivably be used in the commission of a crime, by someone, somewhere, at some point. The government's take last year from the 15,000 cases: a cool $2.5 billion.
To retrieve that asset, you must enter Kafka's universe. Even if you have the tens or hundreds of thousands of dollars necessary to mount a defense, CAF reverses the burden of proof and forces on the property owner an impossible standard - to prove that the asset was not used to facilitate a crime, or if it was, that you did not know that the property was being used for facilitation. Further, you have to prove that you did everything possible (whatever that means) to prevent the crime(s).
He writes of the Caswell motel case:
Consider the government's case against Motel Caswell (United States of America v. 434 Main Street, Tewksbury, MA. Note that the named defendant is not a person.) The motel has been owned by Russ Caswell and his family for two generations. Caswell, 68, and his wife (who is gravely ill) spent some thirty years of painstaking effort to create a mortgage-free business that is worth about $1.5 million - money the Caswells hoped would pay for their retirement.
But when a statist government needs money, it manufactures a pretext for confiscating wealth. The DEA, in cahoots with the Tewksbury Police Department, alleges in its suit that over the last eighteen years, some individuals have committed drug crimes while staying at the motel. The government is not alleging that Caswell committed or facilitated crimes, or that he even knew about them.
...It is impossible for Caswell, or any other violator of CAF, to know ahead of time what actions he was legally prohibited from taking. The fundamental injustice of CAF is not that the "law" is unclear. It is that it is nonexistent. There is no language in it that even approximates the following: "No individual shall knowingly allow the use of property or other assets owned to be used to facilitate a crime. Penalties may include, but are not limited to, the seizure and forfeiture of said property and/or assets." There is such language in the criminal asset forfeiture laws. But then those laws are not handy tools for legal plunder. (Besides, if crime is so rampant in Tewksbury and at the Caswell Motel, then the Feds should be seizing, not the motel, but the police department for failure to protect its citizens.)
During a deposition, Vincent Kelly (DEA Special Agent in the asset forfeiture division covering all of New England) stated that his job is "primarily just mainly looking for property to be forfeited." And how does he do that "looking?" He trolls the Internet for Registry of Deeds "to find out who owns the property," and "how much equity is on the property." Then he contacts local law enforcement - in this case, the Tewksbury Police - to see if any crimes have been reported on the property.
The incentive for locals in this confiscation racket is called "equitable sharing," which can yield them up to 80 percent of the booty. In the Caswell case, that could mean $1.2 million for the Tewksbury police to spend on new cars, uniforms, hi-tech equipment, junkets to Hawaii. Meanwhile, Caswell and his wife will have been impoverished.
Related: Jonathan Turley writes of "The Obama Administration's Inspector Javert," U.S. Attorney Carmen Ortiz:
We previously discussed the ignoble role played by U.S. Attorney Carmen Ortiz in the prosecution of Aaron Swartz, who committed suicide after being relentlessly pursued by her office in a questionable prosecution. As critics around the world questioned her methods and judgment, Ortiz issued a less than credible defense of the case. Now her office is again the subject of allegations of excessive prosecution of a small motel owner where her staff sought to seize his property.
As Ortiz was rewriting history to excuse the conduct of her office in the Swartz case, U.S. Magistrate Judge Judith Dein of Massachusetts an opinion rejecting the motel forfeiture and castigating Ortiz's office for its poor treatment of the owner.
...In a footnote, the court alludes to the long suspicion that the federal agencies are eager to seize property to acquire proceeds for their own operation. The court notes that "[s]ince the only remedial purpose the forfeiture of the Motel Caswell would serve would be to fund Government programs, this court finds that forfeiture would not be consistent with the spirit of the forfeiture laws."
It will be interesting to read if Ortiz plans yet another post hoc rationalization of the case, as she did after the suicide of Swartz. She may want to read the opinion closely because, unlike Swartz, this defendant is still alive and talking.
The wonderful Institute for Justice defended Russell Caswell pro bono, and won.