In what is rapidly becoming a national scandal, civil forfeiture laws allow governments to seize property without convicting, or even accusing, the property owner of a crime. In all but two states, all the government must do is assert “probable cause” that the property was used in illegal acts. The government may keep the property if there is a “preponderance of the evidence” that the property was used to commit a crime. In order to keep their property, owners must prove that they were not guilty. Aside from the impossibility of proving a negative, the law apparently offers little guidance about what that proof would entail.
After 1985, when the low standard of proof was combined with profit sharing between federal, state, and local agencies, civil forfeiture expanded rapidly. Proceeds from sales of seized assets are deposited in the U.S. Department of Justice’s Asset Forfeiture Fund which, as the graph below indicates, has grown rapidly through the recession. Through “equitable sharing arrangements,” the Department of Justice can pay up to 80 percent of the proceeds from a successful forfeiture action to the state and local agencies that cooperated in the seizure. Thanks to the sharing, private property seizure means that law enforcement agencies at all levels can enjoy new equipment, better salaries, nicer offices, and more trips to conventions.
The Institute for Justice is suing to stop the abuse. It is acting on behalf of Russell and Patricia Caswell. Its report on the case says that the Caswells have owned Motel Caswell, a budget motel, for 30 years. They live in it, and are depending on it to finance their retirement.
No state or local authority has accused the Caswells of any wrongdoing. They have taken extensive steps to minimize crime on their property. Still, the U.S. Drug Enforcement Agency (DEA) and the Tewksbury, Massachusetts, police department claim that they have the right to seize Motel Caswell because it has been used to “facilitate a crime.”
The claim of crime facilitation is based on the fact that 19 of the guests who stayed at the motel over the past 18 years were arrested for crimes. That’s .05 percent of the 125,000 rooms the Caswells have rented over the last 20 years. The Institute notes that the nearby Motel 6 and Fairfield Inn have similar problems, but they are owned by large corporations. That means that the government would have to fight corporate attorneys to take them. Since the Caswells own their property free and clear, and are without corporate backing, their motel is a more lucrative target.
Unless the Institute for Justice and the Caswells can convince the courts to protect their property rights, the federal government and the Tweksbury police force will seize Motel Caswell, leave the Caswells penniless, sell the motel, and split profits worth more than $1 million.
Source: Dick M. Carpenter II et al.