If you live in Albuquerque, N.M., and you have teen-agers who might be inclined to raid your wine, beer or whiskey cupboard while you are away, rent your housing, don’t buy. The city council has recently passed a law [September 2000] that lets the city seize your home if it is used for underage drinking. If you think it is cruel and unusual punishment to wreck a family financially, to poison parent-sibling relationships, and to load teen-agers with the guilt of losing the family home, you are correct. This Albuquerque law is the latest manifestation of the forfeiture laws brought in by the conservatives’ war against drugs in the 1980s.
Conservatives did not realize that the main result of their efforts would be the routine confiscation of the assets of the innocent. Frustrated by the difficulty of deterring drug trafficking, conservatives decided that suppressing the drug trade was more important than the U.S. Constitution.
The result was the federal Comprehensive Forfeiture Act of 1984. This law permits the confiscation of assets that in any way “facilitated” a drug crime.
The confiscation is permitted regardless of whether the owner participated in illegal drug activity or was aware that others had brought drugs to his property. Moreover, no proof is needed. To seize property, law-enforcement officials need only claim “probable cause” for their discretionary actions.
People have lost homes, cars, boats, airplanes, motels, rental property, cash, land and other assets simply because police had “probable cause” to believe that a third party smoked a joint on leased, borrowed, visited or rented property. In 80 percent of asset forfeitures, no charges are filed against the confiscated owners.
The asset forfeiture powers were expanded in 1988, 1990 and 1992. The forfeiture provision now covers 140 other federal offenses, and a large number of state and local forfeiture laws have been added to the books.
Forfeiture has proved to be a boom for law-enforcement agencies, as they are permitted to keep the money. House Judiciary Committee Chairman Henry Hyde has noted that agents conducting drug stings chose valuable sites for their sting operations because the presence of drugs at those sites permit them to be seized for facilitating a drug crime.
Look at it from the standpoint of the police. Their budgets are squeezed to pay for welfare entitlements and political payoffs. Asset forfeitures are a way of augmenting their funding.
Lawmakers show scant signs of learning from their mistakes. Rep Jim Leach, R-Iowa, and Sen. John Kerry, D-Mass., want to plow up our financial privacy in order to pursue money-laundering. They have introduced a bill that would, in effect, place each of us under constant criminal investigation of our financial behavior. Financial institutions would be required to maintain profiles of their customers’ finances without a warrant, evidence or reasonable suspicion of wrongdoing.
Moreover, Leach and Kerry want this done on an international level. Their legislation presumes that any “tax haven” — that is, a country with lower taxes than Western welfare states — is ipso facto engaged in money laundering.
In 1998, federal bureaucrats tried to bring in similar rules, but public outcry defeated that effort to require banks to “profile” their customers. Two years later, elected representatives — Jim Leach and John Kerry — are proposing more abusive rules than those dreamed up by unaccountable bureaucrats.
If Americans paid attention, Leach and Kerry would be defeated at the ballot box. But Americans are so badly educated that they do not understand that the Bill of Rights is more important than apprehending drug dealers.
In “A Man for All Seasons,” Sir Thomas More is asked, “Why should the guilty have the benefit of law?” He answers that when rights are disregarded in order to pursue the guilty, the rights of the innocent are also lost. If law is designed to facilitate chasing after criminals, the innocent are denied the protection of law.
In his “Commentaries on the Laws of England,” William Blackstone developed the concept of law as a shield for the innocent rather than a weapon in the hands of government. In the United States, Blackstone’s vision of law — the protection of the innocent from arbitrary power — has given way to Jeremy Bentham’s vision of law as a device for apprehending the guilty.
Blackstone’s vision gave us the Constitution and the Bill of Rights. Bentham has afflicted us with asset forfeiture and financial profiling. Unless Blackstone makes a comeback in the law schools, the United States will become a tyranny.
