[Balko] Drug Warriors Want Your Assets

Courtesy Radley Balko

by Radley Balko
September 15, 2009

This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA). The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime: Three had their cars seized; three had cash taken. None of the six was served with a warrant, none of the six was charged with the crime. All perfectly legal, at least until now.

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year.

Civil asset forfeiture is a particularly odious outgrowth of the drug war. While few would argue that criminals ought to be able to keep the proceeds of their crimes, civil forfeiture allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Hence, forfeiture cases tend to have names like U.S. v. Eight Thousand Eight Hundred and Fifty Dollars, or U.S. v. One 1987 Jeep Wrangler. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, giving them a clear and unmistakable incentive to seize as much property as often as possible.

Fittingly, the Supreme Court is hearing arguments in Alvarez on the 25th anniversary of the Comprehensive Crime Control Act of 1984, the federal legislation that gave us the modern abomination that is drug forfeiture. That law made it easier for federal prosecutors to seize the assets of drug suspects, regardless of whether they were ever charged with a crime. It allowed the government to use hearsay evidence in forfeiture proceedings, and required a showing of only probable cause that the property was tied to a drug crime in order for the government to keep it. That meant, for example, that federal agents could testify to something an informant had told them even if the informant was unavailable to the defense for cross examination.

After a series of particularly outrageous forfeiture cases made national headlines throughout the 1990s, the late Rep. Henry Hyde, R-Ill., was able to push through some reforms in 2000. The Civil Asset Forfeiture Reform Act (CAFRA) bumped the government's standard of proof to "a preponderance of the evidence," prevented the use of hearsay and provided for defendants who won in court to be compensated for attorney's fees.

But the CAFRA reforms applied only to federal law, not to the states, and after 1984 many states passed forfeiture bills similar to the new federal law (Mississippi updated its forfeiture law 41-29-176 in 2001). Illinois' law is one of the worst in the country. DAFPA still allows the state to use hearsay evidence, for example, and still sets the state's evidentiary burden at probable cause. Conversely, if property owners want to use the "innocent owner" defense, they can't use hearsay, and their burden is the higher "preponderance of the evidence" standard. Property owners must post a bond on the seized property just to get a hearing, which again can take up to six months. And even if they prevail in court, they still forfeit 10 percent of the bond. The government isn't required to reimburse them for attorney's fees, court costs or interest, nor is the state liable for any loss of time or income caused by the pilfered property.

The Supreme Court will likely rule only on the provision of the Illinois law that allows the government to hold property for six months before an owner gets his first day in court. The U.S. Court of Appeals for the 7th Circuit struck down that particular portion of the law, though its opinion indicated only that expected property owners be given notice of the seizure and that they be given at least a bare-bones hearing. The opinion amounted to a light rebuke of one portion of an unconscionable law.

Even here, there's cause for pessimism. Generally, the U.S. Supreme Court takes up cases where there's either disagreement between federal districts (that isn't the case here) or where a significant number of justices have problems with the appellate court's decision. It's possible that the Court agreed to an appeal of the 7th Circuit ruling to affirm it, but it isn't likely.

In sum, we have a law that allows the state to seize someone's car without a warrant on the grounds that the car may have been connected to drug activity. Even if he's innocent, the car's owner may have to wait six months before he's even granted a hearing, and more than a year before the state returns his property. Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be. As George Mason University law professor Ilya Somin wrote on The Volokh Conspiracy Web site earlier this year, "The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence."

Unfortunately, the best outcome from Alvarez is likely to be little more than a requirement that states grant a bare-bones hearing in forfeiture cases within a reasonable amount of time—a marginal improvement. At worst, the Court will uphold the state's power to hold seized property essentially indefinitely, and other states will see yet another odious opportunity.

Radley Balko is senior editor of Reason magazine where this column originally appeared. The Reason Foundation, publisher of Reason.com, joined in an amicus brief in Alvarez v. Smith. The JFP Daily features Balko's column every Tuesday.

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