Defenders Argue Asset Seizure Bill Is Too Mild

By David Rovella

E.E. "Bo" Edwards III has worked for more than a decade to change what he says is the rampant abuse of civil asset forfeiture by the government.

In 1991, the 56-year-old Nashville, Tenn., lawyer, described by one colleague as the "grandpa" of the war on forfeiture, took up a case that led to the creation of a forfeiture task force by the National Association of Criminal Defense Lawyers (NACDL). He has lobbied Congress for years to make it harder for the government to seize property allegedly connected to crimes -- seizures that are often unaccompanied by a criminal charge or conviction.

But now that Congress has passed just such a bill, one hailed as a successful collaboration between the liberal American Civil Liberties Union and the NACDL and the conservative Cato Institute and National Rifle Association, Edwards and his defense brethren are more resigned than content.

The final version of the Civil Asset Forfeiture Reform Act of 2000, already approved by the U.S. Senate, passed the U.S. House of Representatives on April 11. The law, coming five years after Representative Henry Hyde, R-Ill., proposed his first version of it, is expected to be signed by President Clinton before Easter. Passage of the controversial bill is being explained by some as a present to Hyde, who plans to step down as chair of the Judiciary Committee next year.

Civil forfeiture, which dates back to medieval times, allows the government to seize property it believes is related to criminal conduct; the tactic is commonly used in drug cases. Last year, the government took in close to $600 million in seized assets, according to a senior Justice official who requested anonymity.

For the first time since the Republic's inception, the burden of proof under the new law will be shifted to the government, forcing prosecutors to prove by a preponderance of the evidence that a seized item is indeed connected to criminal conduct.

The preponderance standard requires a showing that property seized is more likely than not to have been connected to criminal conduct. The new law also eliminates the requirement that a person challenging such a seizure post a 10 percent bond.

Edwards says that he was originally ecstatic over House passage of a stronger version of the bill last June. That bill included a tougher burden of proof, requiring "clear and convincing" evidence. But the compromises required for Senate passage significantly diminished the law's value, he says.

He attacked the compromise bill's restriction of free legal counsel to only those claimants who have had their homes seized or are already represented by free counsel in a related criminal case.

Most of all, he assailed what he calls a last-minute deal between senators Orrin Hatch, R-Utah, Jeff Sessions, R-Ala., and the Justice Department, requiring documentation "if available" and an affidavit, under penalty of perjury, that the claim to be filed is not frivolous.

The law's demand for documentation, says Richard J. Troberman, a Seattle lawyer and NACDL task force co-chairman with Edwards, will dissuade pro se claimants from challenging seizures.

"That's a thinly veiled attempt to intimidate people from making a claim," Edwards says. "The one redeeming aspect of the law is that the property owner can get attorney fees if they win. But it's a sop because it still doesn't address the cases that won't get to court in the first place." He adds that the majority of seizures are for less than $20,000, cases in which the cost of a lawyer would eat up the value of the property.

"Given the makeup of the players," explains ACLU counsel Rachel King, "I guess it was the best we could do."

SHRUBS -- NOT DRUGS
Edwards was already a forfeiture attorney when Willie Jones was stopped by police at the Nashville airport on Feb. 27, 1991. A landscaper with no police record, he had paid cash for a ticket to Houston where, with $9,600 -- also in cash -- he planned to buy shrubs for his business from a wholesale nursery.

But the police said that his cash transaction fit the profile of a drug courier, and a drug-sniffing dog detected drug residue on the cash. Police seized his money and sent him on his way. It took two years for Jones, who hired Edwards, to get his money back, but the case spurred the NACDL to create its task force and was used by Hyde as an example when he introduced his bill.

Under the new law, the government can still seize property with only probable cause, but when challenged, it must file notice in federal court and justify the seizure under the new evidentiary standard. Defense lawyers point out, however, that the government can use the civil discovery process as a sword, seeking evidence to buttress its forfeiture case.

Edwards says that the biggest problem with civil asset forfeiture has yet to be addressed. Under the "equitable sharing" program, federal law enforcement "adopts" state forfeiture cases and completes them, eventually sending upward of 80 percent of the forfeited assets back to the local police agency. Justice officials say that the program provides an incentive for police to pursue money launderers. Defense lawyers counter that local agencies use it to circumvent state laws requiring seized funds to go to other agencies, such as public schools.

"The motive is pure -- seizing the money is much more effective than seizing the drugs," says one Justice official. "Drugs are much more easily replaced at wholesale, whereas money is retail."

But the Cato Institute's Susan E. Chamberlain calls the practice an "affront to federalism" that promotes pursuit of wealthy defendants instead of dangerous ones.

"The ultimate reform," adds Edwards, "would be to take the profit motive out of law enforcement."

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