This is one of the best essays I've seen concerning the burning of the
Constitution and Bill of Rights. Looking just at porno isn't the big
picture. It's consensual crimes in general. Too bad most people only
care about their corner of the room, cause the house is on fire and
it'll get to their corner soon.
Subject: January 1994 -- Casualties of War Drug prohibition has shot gaping holes in the Bill of Rights.
Magazine: Reason
Issue: February 1994
Title: Casualties of War Drug prohibition has shot gaping holes in the Bill of Rights.
Author: Steven B. Duke and Albert C. Gross
At 2 a.m. on June 29, 1991, Tracy White of Los Angeles was awakened by the
explosion of a diversionary grenade set off in a trash can outside her front
door. She stumbled out into the upstairs hallway and was met by a shaft of light
and a man's voice. "Freeze," he said. "Police."
At that moment, her bedroom windows shattered and two men clad in black hoods
swung into the room. Her three infants shrieked in fright. Several guns were
pointed at her. More men dressed in black bounded through the bathroom window.
One ran into an adjoining bedroom and pinned Tracy's sister Yolanda and her
12-year-old daughter behind a door. The youngster tried to squirm free and found
the barrel of a pistol against her head. She closed her eyes and urinated on
herself. "I thought," she later said, "he was going to kill me.
The police had been searching for White's cousin, a reputed gang member, who did
not live there and was not there when the raid occurred. The White apartment was
left a shambles. Almost all the windows were gone, crystal glassware was reduced
to shards, and a chunk was missing from a couch armrest. Six months after the
raid, White and her children still refused to move back into the old apartment,
unable to find peace of mind in a place that reminded them of hooded men
crashing through their windows.
The injuries inflicted on the Whites were mostly psychological, but some
searches are lethal. In Atlanta, in 1991, a pre-Christmas raid by nine cops with
guns drawn awakened Bobby Bowman as they broke down his door with a battering
ram. Bowman, who says he thought he was being robbed, opened fire with a
shotgun. A gunfight ensued, and Bowman's 8-year-old stepson, Xavier, who had
been sleeping in the front room, was killed by a detective's bullet. The police
found $780 worth of crack in Bowman's apartment.
Teresa Nelson, Georgia director of the American Civil Liberties Union,
questioned whether it was worth the life of an innocent 8-year-old to get
evidence in a drug case, but Atlanta police defended the tactics, as do police
across the country. They claim that surprise and overwhelming force are
necessary to minimize destruction of evidence. Many also make the debatable
claim that violent attacks reduce the danger to the police from counterattacks.
Such raids and ransackings are standard procedure in most large cities and,
except in the most outrageous cases, they receive the approval of courts. Police
can get search warrants on the flimsiest of suspicion -- even the word of an
anonymous informant. In many cases, though, the police don't even bother to get
a warrant, since they are virtually unfettered by the risk of successful suits
or other sanctions, especially if they confine their warrantless invasions to
poor members of minority groups.
The Fourth Amendment of the U.S. Constitution, which guarantees against
"unreasonable searches and seizures" and prohibits warrants on anything but
"probable cause," is a casualty of the drug war. Other provisions intended to
protect Americans from overzealous law enforcement -- the right to defense counsel,
the right to a fair trial, and the right to property -- are also in danger. The
debris of the war on drugs may ultimately include shreds of the Constitution as
well as splintered doors, shattered glass, and broken furniture.
Since the early 1970s, almost all the searches and seizures reaching the
U.S. Supreme Court have been upheld. The Court has held, for example,
that a search made on an invalid warrant does not require any remedy so long as
the police acted in "good faith." People may be stopped in their cars, in
airports, on trains, or on buses, and subjected to questioning and dog sniffs of
their persons and possessions. Police may search an open field without warrant
or cause, even if it has "no trespassing" signs and the police incursion is a
criminal offense. They may also, as in Orwell's 1984, conduct close helicopter
surveillance of our homes and backyards.
If it is outside the house, they may search our garbage without cause. If
they have "reasonable suspicion," the police may even search our persons
and possessions. Mobile homes, closed containers within cars, as well as cars
themselves may be searched without a warrant.
The Court has also held, in the 1985 case United States v. Montoya De Hernandez,
that an international traveler, if a suspected "balloon swallower," may, without
warrant or probable cause, be seized as she arrives at the airport,
strip-searched, and ordered to remain incommunicado until she defecates over a
wastebasket under the watchful eye of two matrons. In sanctioning such an
18-hour ordeal, Chief Justice William H. Rehnquist unabashedly listed other
invasions that the Court had upheld: "[F]irst class mail may be opened without a
warrant on less than probable cause.IAutomotive travelers may be stoppedInear
the border without individualized suspicion even if the stop is based largely on
ethnicityIand boats on inland waters with ready access to the sea may be hailed
and boarded with no suspicion whatever." Those incursions, as well as detention
for defecation, Rehnquist said, are responses to "the veritable national crisis
in law enforcement caused by smuggling of illegal narcotics.
In the compulsory defecation case, as in countless others, searches or seizures
have been up- held on nothing more than "reasonable" or even "articulable"
suspicion that drugs are being transported. That level of suspicion can be
achieved by matching up the victim of the search or seizure with a few of the
characteristics contained in secret "drug-courier profiles" that rely heavily
upon ethnic stereotypes. As a result of such profiles, hundreds of innocent
people are subjected to indignities every day.
Twenty-seven-year-old Kurt Disser is an example. A diamond dealer, he frequently
drives between San Diego and Los Angeles on business. Sixty-six miles from the
Mexican border, on Interstate Route 5, near San Clemente, the Immigration and
Naturalization Service maintains a checkpoint, allegedly to detect illegal
aliens but increasingly serving in the drug war. Most of the 115,000 drivers who
pass through the checkpoint each day are merely required to slow down while an
officer glances at them. Disser, however, was stopped and searched 15 of the 30
times he traversed the route during a 17-month period. On several occasions, he
was frisked and his car trunk was searched. Drug-sniffing dogs were given
repeated whiffs of Disser's car. Several times, agents told him the dogs
detected drugs and this led to a full search. No evidence of drugs or
criminality of any kind was ever found. Disser has no criminal record. He was
stopped and searched solely because of his appearance (he has long hair and
drives an elderly Cadillac, both characteristics apparently found in the
profiles).
Hispanics and "hippie types" bear the brunt of the profiles near our southern
border, but young African Americans suffer from them throughout the country. An
African American who drives a car with an out-of-state license plate is likely
to be stopped almost anywhere he goes in the United States. A survey of car
stoppings on the New Jersey Turnpike revealed that, although only 4.7 percent of
the cars were driven by blacks with out-of-state plates, 80 percent of the drug
arrests were of such people. In 1991 the Pittsburgh Press examined 121 cases in
which travelers were searched and no drugs were found. Seventy-seven percent of
the people were black, Hispanic, or Asian. In Memphis, about 75 percent of the
air travelers stopped by drug police in 1989 were black, yet only 4 percent of
the flying public is black.
Almost as offensive as relying on racial characteristics in a profile
to justify searches or seizures is permitting the trivial and subjective
profile characteristics to count as "reasonable" or "articulable" suspicion.
Warren Ferguson, a judge on the U.S. Court of Appeals for the Ninth Circuit, has
observed that the Drug Enforcement Administration's profiles have a
"chameleon-like way of adapting to any particular set of observations." In one
case, a suspicious circumstance (profile characteristic) was deplaning first. In
another, it was deplaning last. In a third, it was deplaning in the middle. A
one-way ticket was said to be a suspicious circumstance in one case; a
round-trip ticket was suspicious in another. Taking a nonstop flight was
suspicious in one case, while changing planes was suspicious in another.
Traveling alone fit a profile in one case; having a companion did so in another.
Behaving nervously was a tipoff in one case; acting calmly was suspicious in
another.
Another favorite basis for suspicion is that the suspect is traveling to or from
a major source city for drugs, even though every U.S. city with a major airport
qualifies for that designation. Even the same agents take contradictory
positions. In Tennessee, the Pittsburgh Press reports, an agent testified that
he was leery of a man because he "walked quickly through the airport." Six weeks
later, the same agent swore that his suspicions were aroused by a man because he
"walked with intentional slowness after getting off the bus.
As even their users admit, the profiles are self-fulfilling. If the profiles are
based on who is searched and found guilty, the guilty will necessarily fit the
profiles. The DEA claims to catch 3,000 or more drug violators through the
profiles, but no records are kept of how many people are hassled, detained, or
searched to produce the 3,000. The DEA keeps no records of the profile system's
failures.
Some numbers, however, are available. Rudy Sandoval, a commander of Denver's
vice bureau, estimated that his police conducted 2,000 airport searches in 1990,
yielding only 49 arrests. In Pittsburgh, where records were kept, 527 people
were searched in 1990, and 49 were arrested. In the Buffalo airport, in 1989,
600 people were stopped by police and only 10 were arrested. Said George Pratt,
a judge on the U.S. Court of Appeals for the Second Circuit: "It appears that
they have sacrificed the Fourth Amendment by detaining 590 innocent people in
order to arrest 10 who are not -- all in the name of the `war on drugs.' When,
pray tell, will it end? Where are we going?
What the drug war has done to the Fourth Amendment, it has also done to the
Sixth. The Sixth Amendment guarantees, among other things, that in "all
criminal prosecutions" the accused shall enjoy "the assistance of counsel for
his defense." No other right is as precious to one accused of crime as the right
of counsel. A loyal, competent lawyer is essential for the protection of every
other right the defendant has, including the right to a fair trial.
In recognition of that fact, the definition of the enemy in the war against
drugs has been expanded. Not only are drug sellers and drug users targets, so
are their lawyers. Criminal-defense lawyers, especially if they practice in
federal courts, have increasingly come to expect their law offices to be
searched, their phones to be tapped, or their offices bugged. They are rarely
surprised when they get Internal Revenue Service summonses seeking information
about their criminal clients, about themselves, or about both.
Prosecutors frequently serve subpoenas on defense lawyers prior to trial,
requiring them to produce documents and testify about their client before a
grand jury, in secret. Having thus driven a wedge between client and attorney,
creating mistrust of the lawyer at least and a disqualifying conflict of
interest at worst, the prosecutor is then in a strong position to coerce a
guilty plea or, in intractable cases, to seek disqualification of the lawyer on
the eve of trial, when no other lawyer has time to prepare a defense.
The courts have upheld all these practices, the effect of which is to deprive
the accused of his only real defensive armament. The Supreme Court added a
powerful missile to the government's arsenal when it held, in the 1989 case
Caplin & Drysdale v. United States, that federal authorities could freeze and
later obtain the forfeiture of the assets of a person accused of a drug crime,
so that he would have no money with which to pay a lawyer.
The centuries-old tradition that confidential conversations between a lawyer and
client cannot be divulged without the consent of the client also seems headed
for the basement of American legal history. Courts have held that because
"monitoring" of conversations in jails and prisons is well-known, any
attorney-client conversations that are eavesdropped upon or tapped are fair
game -- they have been implicitly "consented" to. This absurd fiction was even
applied to Col. Manuel Noriega, who barely speaks English. After he was
kidnapped in Panama and thrown in a Miami jail, his phone conversations with his
lawyers were "monitored." A federal court found he waived his rights by talking
on the phone.
Courts have expanded other exceptions to the attorney-client privilege to the
point that little is left of the privilege in criminal prosecutions. Two
exceptions together almost swallow the privilege: 1) If the attorney's services
were sought, in whole or in part, to aid in the commission of a crime or a
fraud, the crime-fraud exception applies; 2) if necessary to clear himself of
suspicion, the attorney can disclose privileged confidential communications,
even if they bury the client. In short, if the interests of attorney and client
are in conflict, the interests of the attorney prevail.
Anyone accused of being involved with illegal drugs who is (or ever has been)
guilty of the crime charged or any other acquisitive crime and hires a lawyer is
necessarily seeking, at least in part, to cover up past crimes and to avoid
future claims against his assets, such as tax claims, forfeiture claims, and the
like. Courts have ruled that it's enough for prosecutors to show there is
"probable cause" to believe the attorney is helping his client achieve such
objectives, which are usually regarded as impermissible. (Probable cause can
even be based on the attorney-client conversations themselves.) It is not
possible to separate consultations concerning past money-making crimes, to which
the attorney-client privilege supposedly still applies, and consultations about
future crimes or frauds, to which the privilege does not apply. Faced with such
overlaps, courts commonly find there is no privilege.
Even if the crime-fraud exception does not destroy the privilege, the second,
save-the-lawyer-at-any-cost exception often will. A prosecutor can apparently
trump the privilege simply by making insinuations about the complicity of
counsel in the client's alleged criminal activities. The lawyer can then betray
the client to clear himself. That this rule permits the prosecutor to destroy
the accused's privilege by a mere insinuation seems not to bother either courts
or experts on legal ethics.
Courts have also upheld recent requirements that criminal-defense lawyers report
to the IRS anyone who pays them $10,000 or more in cash, whether a client or a
third party. Attorneys who have refused to make such reports about their clients
have been jailed. As of 1986, it is also a felony for anyone, including a
lawyer, to accept money or property in excess of $10,000 that was derived from
specified unlawful activity.
It is no defense for a lawyer or any other recipient that the money or property
was received for legitimate goods or services, even essential legal services.
Nor is it a defense that the attorney had nothing to do with the illegal
activity that generated the money or property. Nor is it a defense that the
attorney was unaware of the specific kind of criminal activity that produced the
money. It is not even a defense for the attorney that he had no actual knowledge
that the money or property was illegally derived. "Willful blindness" is a
substitute for knowledge, and the lifestyle of the client -- fitting stereotypes
of how drug dealers comport themselves -- may go far toward establishing the
attorney's guilty "knowledge" or "willful blindness." Thus, an attorney who
represents a person who is charged with a drug offense who "looks like" a drug
dealer is at risk of being indicted also.
Defense lawyers therefore risk losing not only their fee but their freedom and
their license to practice law for trying to protect the constitutional rights of
their clients. And the possible charges against lawyers are not limited to
accepting "tainted" money as payment of a fee. Lawyers who help their clients
avoid indictment or who represent them in business dealings, such as real-estate
transactions, can be indicted with the client for money laundering, tax evasion,
or even drug trafficking. Attorneys who confine their professional activities
solely to defending clients who have already been arrested on charges still risk
their own indictment, for "obstruction of justice" if nothing else.
Nobody knows what the limits of that crime are. Many prosecutors think that
anything a defense attorney does that might be helpful in defending the client
is such an obstruction. Courts have not yet embraced that interpretation, but
neither have they repudiated it. According to Columbia University law professor
H. Richard Uviller, a former prosecutor, it is almost possible to say that the
statute threatens a five-year penalty for virtually any conduct that the
government deems evasive, abusive, or inconvenient while a judicial proceeding
is pending.
It has always been difficult for persons accused of drug crimes to find
competent attorneys willing to bear the stigma of being "a drug dealer's
lawyer." But now that such attorneys also risk losing both their fees and their
freedom, privately retained drug-defense lawyers are on their way to
extinction -- which is what the Congress and the Supreme Court appear to want.
Court opinions that chisel away at specific constitutional guarantees
ought to be alarming to all who value liberty, but such decisions are
at least visible and are subject to intense scrutiny and criticism. Legal
scholar Steven Wisotsky calls the result of this chiseling process "the Emerging
`Drug Exception' to the Bill of Rights." A less visible and therefore more
ominous "drug exception" corrodes the amorphous right to a fair trial protected
by the Fifth and 14th Amendments' Due Process clauses.
In most drug prosecutions, the trial proceedings are ignored by the press and no
opinions are written by the trial judges justifying or explaining their rulings.
Those accused of crime must rely on the integrity of appellate judges to
scrutinize the record and ensure that the trial proceedings were fair and
consistent with due process. Yet in many courts criminal convictions and long
prison sentences are routinely upheld without even hearing argument of the
appeal and without even the writing of an appellate opinion. In such cases,
there is no basis for believing that the appellate judges bothered to read the
briefs or understood the issues, much less that they dealt with them fairly.
The prevailing, although rarely acknowledged, attitude in American courts is
that almost any trial is too good for a person accused of a drug crime. That
attitude was succinctly displayed in a remark by one of the most liberal Supreme
Court justices. In a 1987 interview with Life, Thurgood Marshall said, "If it's
a dope case, I won't even read the petition. I ain't giving no break to no dope
dealer." That statement caught the attention of some in the legal profession,
but it produced neither a bark of criticism nor a paragraph of protest.
The pressures that the drug war have brought to bear on already overburdened
courts have produced a breakdown in both their integrity and the respect in
which they are held. Many defense lawyers and scholars are convinced that
appellate judges will say anything to uphold a drug conviction. If such judges
don't affirm without writing any opinion at all, they often issue unsigned
opinions and, because such opinions are so shoddy, forbid their publication. The
courts will not even allow lawyers to cite such "opinions" as precedent in other
cases. Finally, when they do publish their opinions, judges often invent
nonexistent "facts" to support their affirmances. Respect for the American
judiciary by lawyers who appear before them has probably never been lower.
Occasionally, a judge rails against the trampling of rights under the tanks of
the drug war. Usually, this is done as part of a multi-judge panel, where a
judge can dissent from the decision of the majority while having no discernible
effect on the outcome. Such dissenting opinions can ring the bells of
freedom while the majority orders the defendant packed off to prison. The
dissenter has little responsibility for what he says, since he is not deciding
the case. Protests by judges at the trial level, where a single judge is
responsible for the outcome, require more courage and happen less often.
One such judge was U.S. Magistrate Peter Nimkoff of Miami. Nimkoff frequently
offended prosecutors and other judges by granting bail to defendants accused of
major drug crimes. Most judges either order the defendant detained without any
bail at all -- a power given to them by the 1984 Bail Reform Act -- or find out how much bail the defendant can post and then set bail at five or 10 times that
amount. Nimkoff asserted that the Constitution presumes the innocence of all
persons accused of crime, even a drug crime.
In a 1984 case, he blasted as "outrageous" the tactics of a DEA agent who,
posing as a friend of a lawyer's client, tried to get the Miami attorney to
divulge confidential communications from his client. DEA agents then tried to
implicate the lawyer himself in an escape plot. Failing that, they obtained a
search warrant on a fraudulent affidavit and thus were able to read privileged
letters between attorney and client. In another case, Nimkoff denounced the
DEA's use of a female informant who set up at least 40 men, enticing them into
drug deals after developing a sexual relationship with them. The "boyfriend"
would be busted, and the "girlfriend" would get paid by the DEA.
Finally, in 1986, Nimkoff had enough. He resigned to protest the relentless
erosion of rights and the governmental abuses of power with which he was daily
confronted. In a press conference, he decried the view "that there are two
constitutions -- one for criminal cases generally and another for drug cases."
Such a view is not only wrong, he said. It "invites police officers to behave
like criminals. And they do." Nimkoff's lamentations had the impact of a flower
falling in the forest. Miami's major newspaper, the Herald, found nothing about
his resignation or his press conference that warranted reporting.
The drug war's threats to the Bill of Rights extend not only to those
civil liberties favored by ACLU liberals but also to property rights.
The signers of the Declaration of Independence believed, with John Locke, that
the right of property was fundamental, inalienable, an aspect of humanity. They
regarded liberty as impossible without property, which was the guardian of every
other right. These beliefs are reflected in constitutional text. The Fifth
Amendment declares that "no person shall be deprived of life, liberty or
property without due process of law; nor shall private property be taken for
public use, without just compensation." Under forfeiture statutes enacted since
1970, however, both deprivations occur routinely, with the approval of courts.
Under federal statutes, any property is subject to forfeiture if it is "used, or
intended to be used, in any manner or part, to commit or to facilitate the
commission" of a drug crime. (See "Ill-Gotten Gains," August/September 1993.) No
one need be convicted or even accused of a crime for forfeiture to occur.
Forfeiture is a "civil" matter. Title vests in the government instantly upon the
existence of the use or the intention to use the property in connection with a
drug offense. All the government needs to establish its right to seize the
property is "probable cause," the same flimsy standard needed to get a search
warrant.
The government can take a home on no stronger a showing than it needs to take a
look inside. Hearsay or even an anonymous informant can suffice. No legal
proceedings are required before personal property may be seized. If the police
have "probable cause" concerning a car, a boat, or an airplane, they just grab
it. Although a hearing has to take place before property can be repossessed at
the behest of a conditional seller, before a driver's license can be revoked,
before welfare benefits can be terminated, and before a state employee can be
fired, persons can have their motor homes confiscated without any proceedings of
any kind, if the confiscation is a drug forfeiture. There may be a right to
contest the forfeiture after the seizure, but even this right is lost if not
promptly asserted. Moreover, the costs of hiring a lawyer and suing to recover
the seized property may be prohibitive unless the seized property is of great
value.
As construed by the courts, the forfeiture statutes also encourage police to
make blatantly unconstitutional seizures. Property may be seized without
probable cause -- on a naked hunch -- and still be retained and forfeited. Courts hold
that illegally seized property may be forfeited if the police establish probable
cause at the forfeiture proceeding itself. It doesn't matter that there was no
cause whatever for the seizure; it doesn't matter that the seizure was illegal,
even unconstitutional. If the government can later establish probable cause
(through the seized property itself or investigation occurring after the
seizure), that is sufficient to uphold a forfeiture.
If the government wants to seize real property without notice, it has to get a
court's approval, but that is as easy as getting a search warrant. A seizure
warrant is obtained in the same way as a search warrant and on the same hearsay
grounds. In 1988, a six-story apartment building in New York, containing 41
apartments, was seized on such a warrant, which the appellate court upheld.
No civilized country imposes criminal punishment for mere evil intentions, but
the forfeiture statutes -- since they are "civil," not "criminal" -- are apparently
subject to no such limitation. In 1991 the U.S. Court of Appeals for the Third
Circuit held that a home was forfeitable because the owner, when he applied for
a home equity loan, "intended" to use the proceeds to buy drugs. By the time the
loan actually came through, he had used other funds for that purpose, but that
didn't matter, the court said, because he had intended to use the home to secure
a loan, the proceeds of which he intended to use for drugs. The home was
therefore no longer his. It would apparently have made no difference if he never
even applied for the loan, as long as he thought about it.
Any activities within a home that relate to drugs are sufficient for forfeiture
of the home: a phone call to or from a source; the possession of chemicals,
wrappers, paraphernalia of any kind; the storing or reading of any how-to books
on the cultivation or production of drugs. The operative question is whether any
of these activities was "intended" to facilitate a drug offense.
If a car is driven to or from a place where drugs are bought or sold and is then
parked in a garage attached to a home, the home has been used to store the car,
which facilitated the transaction, and is probably forfeitable along with the
car. If the home is located on a 120-acre farm, the entire farm goes as well. If
only a few square feet of land in a remote section of a farm are devoted to
marijuana plants, the grower loses not only the entire farm, but, if it is on
the same land as the farm, his home as well.
Once any property qualifies for forfeiture, almost any other property owned or
possessed by the same person can fall into the forfeiture pot. Notions about how
otherwise "innocent" property can "facilitate" illegal activities are almost
limitless. In a 1991 Hawaii case, when drug proceeds were deposited in a bank
account that contained several hundred thousand dollars in "clean" funds, the
entire account was declared forfeit on the theory that the "clean" funds
facilitated the laundering of the tainted funds. In a 1989 case involving a drug
dealer who owned and operated a ranch in Georgia, his quarter horses -- all 27 of
them -- were forfeited on the theory that, as part of a legitimate business, the
livestock helped create a "front" for the owner's illegal activities. On this
theory, the more "innocent" one's use of property is, the more effective it is
as a "front" or "cover" and therefore the more clearly forfeitable.
Entire hotels have been forfeited because one or more rooms were used by guests
for drug transactions. Entire apartment houses have been lost because drug
activities occurred in some apartments. In 1991 proceedings were brought to
forfeit fraternity houses at the University of Virginia because some of the
members sold drugs there. Those seizures created a stir, but they pale when
compared to the potential. Imagine the government taking over New York's Plaza
Hotel or one of the giant casino hotels in Atlantic City or Las Vegas on the
same theory. Or taking over a company town because of a single drug sale or
backyard marijuana plant. Harvard University is also available for the taking.
There are certainly drug sales, drug use, even drug manufacturing taking place
on campus.
Under federal law, property owners can defeat civil forfeiture if they
can prove either that the claimed offending use did not occur and was
not even intended, or that the offending use occurred or was intended "without
the knowledge or consent of that owner." Unfortunately, even this seemingly
clear provision provides little protection for innocent owners. Courts have
treated "knowledge" and "willful blindness" as equivalents and have then merged
"willful blindness" into "negligence.
Despite the plain language of the statute, most courts are unwilling to lift a
forfeiture unless the owners can prove that the offending activity not only
occurred without their knowledge or consent, but also that they did all that
"reasonably could be expected to prevent the proscribed use of the property."
The owner has been conscripted as a police officer to ensure that no improper
use is made of the property. In a 1990 Milwaukee case, the owner of a 36-unit
apartment building plagued by dope dealing evicted 10 tenants suspected of drug
use, gave a master key to the police, forwarded tips to the police, and even
hired two security firms. The city seized the building anyway.
If owners discover that their property is being used to "facilitate" drug use or
sale, what can they do to ensure that they will not lose their property to
forfeiture? Nothing, probably. If they call the police and inform on their
tenants, they have established their knowledge, as of the date they informed,
which will usually be sufficient for forfeiture. Informing the police may go far
toward establishing that owners did not "consent" to the illicit use, but many
courts have held that the owner must both lack knowledge and not consent to the
illicit use.
As scary as forfeiture already is, it is spreading to other offenses. When it is
extended to new areas, the punishment becomes drastically disproportionate to
the offense and the constitutional safeguards of criminal procedure are
circumvented. Already, federal forfeiture statutes apply to pornography,
gambling, and several other offenses, as well as drugs. Some state forfeiture
laws apply to property used in any felony. The forfeiture of cars used in sex
offenses is commonplace. Hartford, Connecticut, recently began confiscating the
cars of johns who cruise neighborhoods looking for prostitutes. Some states take
one's car for drunk driving.
Where will it end? Why not extend forfeiture to income-tax evasion and take the
homes of the millions -- some say as many as 30 million -- who cheat on their taxes?
The statutory basis for forfeiting homes and businesses of tax evaders is
already in place. The Internal Revenue Code reads: "It shall be unlawful to have
or possess any property intended for use in violating the provisions of the
Internal Revenue Service LawsIor which has been so used, and no property rights
shall exist in any such property.
Although use of this provision has mainly been limited to seizures of moonshine
and gambling equipment, and sometimes businesses, there is no reason, given the
breadth of the drug forfeiture decisions, why it can't be employed to take the
homes and offices of tax evaders and even those of their accountants and
lawyers. A congressman who failed to pay Social Security tax on wages of his
housekeeper could lose his home. Moreover, unlike drug forfeiture, the tax
forfeiture statutes have no innocent-owner defense.
If there is a shard of moral justification for forfeiture, it is that an owner,
duly forewarned, chooses to use or permit his property to be used illegally and
therefore voluntarily "waives" his constitutional rights of property. But such a
"waiver" theory can be extended to destroy all rights and all liberty. It is a
cancer on the Constitution, certain to metastasize if not eliminated soon.
Steven B. Duke is Law of Science and Technology Professor at Yale Law School.
Albert C. Gross is an attorney and writer in San Diego. This article is adapted
from their book, America's Longest War: Rethinking Our Tragic Crusade Against
Drugs (Putnam).
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