Does U.S. Federal Asset Forfeiture
Violate our Fundamental Rights?

The Civil Rights debate started once again when on June 1, 2004, the Bush Administration designated ten international traffickers as ‘Narcotic Kingpins’. The ‘Kingpins’ named are:

• Arellano Felix Organization (Mexico)

• Eduardo Ramon Arellano Felix (Mexico)

• Francisco Javier Arellano Felix (Mexico)

• Carrillo Fuentes Organization (Mexico)

• Armando Valencia Cornelio (Mexico)

• Norris Nembhard (Jamaica)

• Leebert Ramcharan (Jamaica)

• Fernando Melciades Zevallos Gonzales (Peru)

• Iqbal Mirchi (India)

• Haji Bashir Noorzai (Afghanistan)

SHUTTING THE DOOR
The purpose of the ‘Drug Kingpin Act’ is to prevent significant narcotic traffickers and their businesses, associates, agents and operatives from having any access whatsoever to the U.S. financial system. However, should lawyers and accountants have their due process rights violated by not being able to ply their trade to alleged ‘Kingpins’ without having to obtain a license from the Office of Foreign Assets Control? Does this affect the alleged 'Kingpins' Sixth Amendment Right to Counsel?

The Department of Treasury Foreign Assets Control operates a sanctions program to implement the ‘Kingpin Act’. These sanctions include criminal penalties, civil penalties and fines. The economic sanctions match the forfeitures, which are economic sanctions for U.S. Citizens doing business in the United States. These ‘Kingpin’ sanctions finally shut the ‘inner’ and ‘outer’ economic door to the house of the international drug trade.

ANCIENT TIMES
But, what is Civil Assets Forfeiture? It is as old and as ancient a concept as the so-called Deodand of Ancient Common Law. Under Ancient Common Law, the Deodand was a personal ‘chattel’ which ‘having been the immediate occasion of the death of a person was forfeited to the crown to be applied to past uses’.

Seventh Century (A.D.) lawmakers did not have to worry about due process rights. Our legal system has matured.

The Deodand also referred to a sum taken in lieu of the Deodand and the word Deodand was a Latin derivation meaning ‘a thing to be given to God’.

The Deodand was abolished in English law in 1846 but its ‘ghost’ lives on with us today and there are many contemporary American Laws, which permit the Government to seize and forfeit the property of Citizens who have committed criminal offenses.

STATUTORY DEVELOPMENT AND DUE PROCESS
The Comprehensive Drug Abuse, Prevention and Control Act of 1970, was the initial forfeiture statute passed by Congress in 1970. That statute permits the Government to forfeit illegal drugs, manufacturing and storage equipment and conveyances used to transport drugs.

Congress was pleased with the initial result of the Comprehensive Drug Abuse Prevention and Control Act and set about ‘willy nilly’ creating more opportunities for the Government to seize your property and perhaps violate your Rights. What does the Constitution say about this?

The Fifth Amendment says that property cannot be taken from a Citizen without “Due Process of Law” i.e. a Trial or a Hearing; however, the forfeiture laws are slowly evolving to deprive Citizens of their rights to property based on a Law Enforcement Officer’s discretion. This is certainly not what the ‘founding fathers’ meant. They carefully protected the right to property.

One of the reasons why slavery was abolished so late in the United States, thirty years after its abolition in England, was the fact that slaves were regarded as ‘investment property’. Therefore, the concept of the abolition of slavery had special due process implications. Slave owners rights were not disregarded.

Perhaps the spiraling amount of forfeiture statutes is going to fall into disfavor as forfeiture attracts more and more academic and legal criticism. The forfeiture statutes included:

• Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USC § 881)
• Psychotropic Substances Act of 1978 (21 USC § 881 (a)(6))
• Comprehensive Crime Control Act of 1984 (21 USC § 881(e))
• Comprehensive Forfeiture Act of 1984, PL 98-473 (21 USC § 881(a)(7))
• Anti-Drug Abuse Act of 1986 (21 USC § 853)
• Money Laundering Control Act of 1986 (18 USC § 981)
• Anti-Drug Abuse Act of 1988 (21 USC § 881)

IN REM
Civil forfeiture is based on what is called an in rem proceeding. The impression being given is that the ‘thing’ itself has done the wrong and that the thing can actually be tried. See the United States v. One 1974 Cadillac Eldorado Sedan 548 F.2d 421, p. 423 (2d Cir. 1977).

Generally, under Federal Law, a civil forfeiture can be Judicial or Administrative. Owners who have had property seized who wish to challenge the property seizure, have twenty days to file a claim contesting administrative forfeiture.

It is interesting to note that the owner of the property does not need to be charged with a crime to have the so-called ‘guilty’ property forfeited.

Many of the individual U.S. States also have forfeiture statutes, which permit State Agencies to seize the proceeds of narcotics activities.

How are the rights of individuals affected by the forfeiture process? Because it is the property that is ‘accused’ of the ‘improper conduct’, innocent owners can have their property seized when it is used by someone else to commit a drug crime without the owner’s permission or knowledge. See Calero-Toledo v. Pierson Yacht Leasing Co. 94 S.Ct. 2080 (1974).

There is, however, a big difference between Criminal and Civil forfeiture. In a Criminal case, the Defendant is always innocent until proven guilty; in Civil forfeiture proceeding, the property is presumed guilty and the burden is placed upon the property owner to prove on a balance of probabilities that the property was not involved in any wrong doing. This jurisprudential method was criticized by Judge Arlen Beam as creating a ‘great risk’ of error. See United States v. $12,390, 956 F.2d 811. See also U.S. Representative Henry Hyde Report on forfeiture.

ANTI-BLACK?
Blacks are far more likely to have their property forfeited than whites because of the institutional racism of U.S. Law Enforcement. Somehow Caucasians seem to get the benefit of the doubt in civil forfeiture, while black citizens do not. See Hyde.

Jamaica has enacted a Drug Offenses Forfeiture and Proceeds Act. This Jamaican statute is based on the existing American statutes.

Before passing new legislation on forfeiture, Jamaica should perhaps determine whether the proposed statutory scheme will protect the constitutional rights of Jamaicans particularly the rights of individuals. Many Jamaicans have been on the 'receiving end' of forfeiture proceedings; hopefully, the Jamaican Government will look closely at any proposal to adopt U.S. Forfeiture Policy.

Jamaicans should not ‘blindly’ follow the American model unless we wish to proscribe our ancient constitutional freedoms and rights. There is, however, a need to separate drug dealers from their ill-gotten gains.

Signed: Professor David P. Rowe

Prepared at the request of the Jamaican Senate
December 2004