Without Due Process of Law

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.

Comments (12)

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  1. Buster says:

    A private pilot from the Dallas area recently prevailed in similar circumstances. He had transported a couple “oilmen” and their multiple pieces of luggage on several occasions from South Texas to the Southeast (article here. Acting on a tip, police raided his passengers’ hotel room and discovered they were carrying suitcases with 380 pounds of cocaine. He managed to convince a jury that he didn’t know anything about the drugs. Then he had to convince another jury that he shouldn’t lose his $300,000, plane that he counted on for his retirement. He succeeded — although some legal experts express dismay that he was able to do it.

  2. Jackson says:

    When the govt takes things away from you for personal gain, and without proof, you know something is wrong.

  3. August says:

    “So here we have significant injuries inflicted on two major organs of any free and civil society by the “war on drugs” war on peaceful people (only some of whom use intoxicants that the government disapproves of): the rule of law and security of property rights.”

    http://cafehayek.com/2011/06/more-on-the-ordered-liberty-allegedly-promoted-by-the-drug-war.html

  4. Cindy says:

    That’s outrageous. There’s a huge difference between running a sleazy motel that becomes a magnet for crime because you simply “look the other way” and owning a normal motel where criminals may occasionally rent rooms.

    What should owners do — deputize themselves to search rooms? Conduct mandatory background checks of everyone staying there?

  5. Jordan says:

    Yeah this is absolutely incredible. There is quite a bit of literature linking RICO asset seizure to financial hardships for law enforcement. It’s especially bad when they seize property in order to “prevent” people from transfering or hiding assets; especially valuable property.

  6. Spencer says:

    19 of the guests who stayed at the motel had been arrested in a period of time of 18 years. So what? What does that have to do with the owners of the motel in the first place? How does this make them responsible for anything these guests did or didn’t do outside of the property? This is ridiculous.
    They are an easy target because they own their own property. When is this government going to mind its own business and leave business owners alone?!

  7. seyyed says:

    wow! does the DEA not have anything better to do than go after a motel which has really done nothing.

  8. Studebaker says:

    This budget motel was being targeted presumably because it was a low-rent, flea bag mote of the type favored by prostitutes and drug dealers. If illicit activity was so bad that it created a public nuisance, it could be closed down. However, seizing the motel and auctioning it off would not change anything. In all likelihood, the next owner would also have the same problems. This seizure is about money; not about fighting crime.

  9. Robert says:

    And you’re surprised that we’re no long innocent until proven guilty?

    Just take a look at our report on Amnesty International:
    http://www.amnesty.org/en/region/usa/report-2012

  10. Alex says:

    Civil forfeiture is one of my hot-button issues, that I wish would get more attention nationally.

  11. Paul says:

    Thanks Linda, but why is this on a blog about healthcare?

  12. Linda Gorman says:

    Paul,

    If the government behaves this way with respect to real property, do you think it will follow the rules with respect to health care?