Statement of Senator Patrick, Ranking Member, Senate Judiciary Committee, Subcommittee On Criminal Justice Oversight Hearing Ono Civil Asset Forfeiture

July 21, 1999

Asset forfeiture is a powerful crime-fighting tool. It has been a particularly potent weapon in the war on drugs, allowing the government to take the cars and boats and stash houses amassed by drug dealers and put them to honest use. Last year alone, the government was able to seize nearly half a billion dollars worth of assets, cutting a big chunk out of criminals' profit stream and returning it to the law-abiding community.

But like any other system, asset forfeiture is not fail-safe; it can be abused. In the past year, Americans have had first-hand experience with what can happen when a prosecutor, with all the powers of his office, throws judgment to the wind and succumbs to zealotry. Today we will hear examples of what happens when prosecutorial zeal skirts the boundaries of due process, leading to the taking of private property regardless of whether the owner is innocent of, or even cognizant of, the property's use in an illegal act.

Our nation's drug forfeiture system is drawing increasing and exceedingly sharp criticism from scholars and commentators. Federal judges are also adding their voices to the growing chorus of concern. In 1996, the Eighth Circuit Court of Appeals rebuked the government for capitalizing on the claimants' confusion to forfeit over $70,000 of their currency, and expressed alarm that "the war on drugs has brought us to the point where the government may seize ... a citizen's property without any initial showing of cause, and put the onus on the citizen to perfectly navigate the bureaucratic labyrinth in order to liberate what is presumptively his or hers in the first place. ... Should the citizen prove inept, the government may keep the property, without ever having to justify or explain its actions." [Muhammed v. DEA, 92 F.3d 648 (8th Cir. 1996).]

More recently, the Seventh Circuit ordered the return of over $500,000 in currency that had been improperly seized from a Chicago pizzeria, noting that it was "certainly not the first court to be enormously troubled by the government's increasing and virtually unchecked use of the civil forfeiture statute and the disregard for the due process that is buried in those statutes." [United States v. $506,231 in U.S. Currency, 125 F.3d 442 (7th Cir. 1997).]

Civil asset forfeiture rests upon the medieval notion that property is somehow guilty when it causes harm to another. The notion of "guilty property" is what enables the government to seize property regardless of the guilt or innocence of the property owner. In many asset forfeiture cases, the person whose property is taken is never charged with any crime.

The "guilty property" notion also explains the topsy-turvy nature of today's civil forfeiture proceedings, in which the property owner -- not the government -- bears the burden of proof. Under current law, all the government must do is make an initial showing of probable cause that the property is "guilty" and subject to forfeiture; it is then up to the property owner to prove that the property was not involved in any wrongdoing.

It is time to reexamine the obsolete underpinnings of our civil forfeiture laws and bring these laws in line with more modern principles of due process and fair play. We must be especially careful to ensure that innocent property owners are adequately protected.

H.R. 1658, the Civil Asset Forfeiture Act, would provide greater safeguards for individuals whose property has been seized by the government. This bipartisan legislation passed the House of Representatives last month by an overwhelming majority, and it deserves our prompt consideration.

The Administration has expressed concern that H.R. 1658 would interfere with its ability to combat drug trafficking, alien smuggling, consumer fraud, and other criminal offenses. We should take these concerns seriously and scrutinize the House-passed bill carefully, with the needs of federal law enforcement in mind.

The right to own property does not include the right to keep ill-gotten gains. But under our Constitution, deprivation of property and due process must go hand-in-hand -- you cannot have one without the other.

I look forward to hearing from all our witnesses today, and I hope that we can work together to enact fair and much-needed civil asset forfeiture reform legislation.