One of a five part series entitled Presumed
Guilty.
Copyright, 1991, The Pittsburgh Press Co.
Top, Part 1, Part 2, Part 3, Part 4, Part 5.
A Vermont man was found guilty of growing six marijuana plants. He received a suspended sentence and was ordered to do 50 hours of community work. But there was an added penalty: He and his family nearly lost their 49- acre farm.
In Washington, where the maximum criminal penalty could have been a $10,000 fine, an elderly couple served 60 days for growing 35 marijuana plants - and lost their $100,000 house.
In Bismarck, N.D., a young couple received suspended sentences after pleading guilty to growing marijuana. The judge who ordered them to forfeit the three-bedroom house where they lived with their three children worried from the bench that he might be throwing them onto the welfare rolls. But he says he had no choice.
All three families are the victims of a federal law that allows the government to take homes, lands, vehicles and other possessions from Americans convicted of possessing drugs or violating a host of other statutes.
The law was intended to penalize major drug dealers and organized crime figures by taking their property, selling it and returning the proceeds to the cops for other investigations. But the dollar return to the cops has been so great that it's now being used for scores of crimes, some no more than misdemeanors by first-time law- breakers.
Because of the law, more and more people are losing their property. For many, the punishment no longer fits the crime.
Community outrage helped Robert Machin and Joann Lidell keep their farm in South Washington, Vt., after the federal government tried to seize it in 1989.
Signs decrying "Cruel and unusual punishment - remember the Eighth Amendment" were posted along local roads. Lawmakers and politicians got involved. Nearly all their neighbors signed petitions.
Machin and Lidell, advocates of the back-to-nature movement, support themselves and their three children off their 49 acres. They boil maple sap into syrup, press apples into cider and educate their children in the rustic, gas-lit rooms of their eight-sided wooden house.
Their trouble began in September 1988, when a teenager busted for a traffic violation traded his way out of a ticket by telling state police he could show them 200 marijuana plants growing on Machin's farm.
Police raided the property and found only six plants, which Machin admitted to growing.
He received a suspended sentence and spent 50 hours doing community service. Tranquility returned to the Machin farm, but the government wasn't through.
On Aug. 12, 1989, U.S. Attorney George Terwilliger III filed action to seize the Machin house and property. Vermont state law does not permit the seizure of a home, so the case was pursued through federal courts.
But the political pressure and the outpouring of concern from the community forced Terwilliger, who also runs the Justice Department's forfeiture fund, to back off.
"The Machin case is one where public scrutiny forced the government to do it right. What about all the others where no one is watching?" Machin's lawyer, Richard Rubin, asks.
There was little public scrutiny in November 1989 after Robert and Brenda Schmalz pleaded guilty to marijuana charges in Bismarck, N.D., and got probation.
North Dakota state law does not allow the forfeiture of real estate involved in crimes. So, in order to seize the house, prosecutors took the Schmalz case to federal court, says federal Judge Patrick Conmy, who got the case.
Conmy said at the hearing that the couple had grown marijuana in their basement for their own use. Even so, because they used their house in the crime, Conmy says, he had no choice but to order them to forfeit their home.
"I don't really care if somebody loses their Cadillac, or their coin collection, the cash that's with the drugs. That's fine. It's looked on as a hazard of doing business," the federal judge says.
"But you get a husband, wife and several children in a three-bedroom home and the husband raises marijuana in the basement with some grow lights, and you take their house for that. That, to me, is different."
The marijuana Jack Blahnik grew in his yard controlled severe pain from his cluster headaches, he says.
Blahnik completed 68 years of his life without a single brush with the police. But in his 69th year, he and his 61-year-old wife, Patricia, were arrested, convicted and jailed for 60 days for growing 35 marijuana plants. On March 6, 1990, the state of Washington also seized the couple's three-bedroom home and the five acres it sat on.
Blahnik admits he was growing the dope.
"I showed it to the police, I took them out to the shed in the back yard and told them that I was growing the stuff for my own use, to try to control the pain from these cluster headaches that I have," Blahnik says.
Blahnik heard that marijuana helps such headaches, and his doctor confirmed its value.
"My wife was against my growing the stuff, but she went to jail because she copied some growing instructions for me," Blahnik says.
The statute under which the Blahnik's house was seized requires the state to provide "evidence which demonstrates the offender's intent to engage in commercial activity." The police never made that link, affidavits show.
The Blahnik's $100,000 property in Woodland, about 130 miles south of Seattle, was their nest egg.
"It was our life savings," Blahnik says. "Everything we had went into that house and land."
Police charged that drug sales financed the house.
"They knew that wasn't true," Mrs. Blahnik says. "Our bank statements and tax forms show that everything we ever put into buying that house, and everything else we have, came from money that we worked hard 40 years to save."
The Blahniks,' lawyer, Michael Mclean, calls the seizure unconstitutional and punitive.
"The maximum fine for this crime in the state of Washington is $10,000. The Blahnik's property was worth 10 times that amount."
Blahnik does not question that he should be punished for breaking the law. However, he questions the manner in which it was done.
"The prosecuting attorney went on television, putting our mug shots on and claiming they had made the biggest seizure ever made in either Washington or Oregon and we could possibly be connected to a nationwide drug ring," Blahnik says.
"They failed to mention that their big seizure was our retirement money," Blahnik says.
Sometimes the government's push to seize property drives it to spend far more than it makes. For example, it's estimated that the state of Iowa spent more than $100,000 defending the seizure of a $6,000 fishing boat.
It has been three years since the Iowa Department of Natural Resources agents charged Dickey Kaster with having three illegally caught fish.
The officers stopped Kaster, a 63- year-old retired gas company foreman, leaving Clear Lake. In the back of his truck the fish cops found a silver bass, a northern pike and a muskie, and said they had "net marks" on them. Kaster was charged with gillnetting, a misdemeanor in Iowa punishable at the time by up to 30 days in jail and a $100 fine for each fish. Altogether, he paid about $500 in fines.
But the officers also seized Kaster's 16-foot boat, 40-hp motor and trailer worth about $6,000.
"No doubt they had net marks on them, but so do 75 percent of the fish in the lake, I caught them with a rod and night crawlers," Kaster says.
District Court Judge Stephen Carroll said the seizure was unconstitutional and ordered the boat, motor and trailer returned.
But Cerro Gordo County Attorney Paul Martin appealed to the Iowa Supreme Court, which ruled the property could be seized.
Kaster's saga of the three fish has been on local court dockets four times and before the Iowa Supreme Court twice.
A court clerk in Mason City estimated that "probably a lot more than $100,000" was spent in pursuit of justice for those fish.
Kaster says he knows exactly what the ordeal cost him.
"Just about everything I own. I auctioned off the inventory of my bait and tackle shop at about a dime on the dollar and sold my house to pay the legal bills and keep the bank happy," he says.
"I didn't get my boat back, but I'm still trying," he says. "You can't let the government ignore the Constitution. I'm fighting this over a boat that shouldn't have been taken, but it really deals with how fair our government is supposed to be."
And fairness is what is worrying Don and Ruth Churchill, who are fighting to keep their family farm in Indiana.
"Salt of the earth" and "good, God-fearing people" are how some neighbors in the southern Indiana farming community describe the 54-year-old couple.
In 1987, Churchill had found some marijuana plants mixed in with his corn and immediately notified state police.
Farmers in the area were aware that a group called "the Cornbread Mafia" was planting marijuana in other people's cornfields throughout nine Midwestern states.
The cops destroyed the crop, and the Churchills thought they were done with marijuana.
But two years later, while They were watching a TV newscast about thousands of marijuana plants being found on farmland, they recognized the land as theirs.
The next morning, the Churchills went to the sheriff to say it was their land. Ten days later, state police arrived at their door to arrest Churchill and his 34-year-old son, David, charging them with numerous felony counts, including possession of and cultivating marijuana.
An informant had reported that he saw Churchill, his son and a third, unidentified man tending marijuana crops on land they own in Harrison County. The informant later reported that dope was also growing on other Churchill land in Crawford County, court affidavits show.
In February, four months before their first criminal trial, the federal government - prodded by state police who would get the bulk of any forfeiture proceeds - seized the 149 acres the Churchills own in both counties.
They are awaiting the outcome of the cases.
While the Churchills anguish over the possible loss of their property, they don't dispute that police found thousands of marijuana plants growing on their two tracts.
What Churchill disputes is that he or anyone else in his family grew it.
"I farm part time. We plant in the spring and harvest in the fall and don't mess with the corn in between." Before the large cache of marijuana was discovered, "we hadn't been out there for weeks," says Churchill, who leaves for work at 4 a.m. to get to the Ford truck plant 43 miles away in Louisville, where he has worked for 27 years.
Planting of "no-till" crops is very common in the area as a way to make extra money.
The farmland, especially valuable because it contains the largest natural spring in Indiana, has been in Mrs. Churchill's family for generations.
Standing on the steps of a wood-frame chapel in the midst of some of the land the government is trying to take, Mrs. Churchill expressed her disillusionment.
"This church is built on my family's land. I was baptized here, and Don and I were married here. This used to be a place of peace and happiness," Mrs. Churchill says. "Now, this place, our community, our lives, our faith in government, everything has changed.
"If they take our land, I'm going to lose faith in everything," she says.
Ron Simpson, the state's primary prosecutor of the criminal charges, questions the fairness of the federal government's seizure of the Churchills' land when most of it was inherited from the wife's family.
"Under our system, if someone is punished, they should have been charged with something, and we've brought no charges against Mrs. Churchill. We have no evidence that she knew anything about the marajuana that was growing," Simpson says. "You just have to wonder about how fair this seizure is." Churchill says:
"We assumed the legal system was fair, that if we were innocent, we had nothing to worry about. Now I'm in one court defending myself and MY son against drug charges, and in another court, they're trying to take MY land away. I'm worrying about a lot of things now."
The issues of proportionality and fairness pose challenges for even strong supporters of forfeiture laws, including Gwen Holden, a director of the National Criminal Justice Association in Washington, D.C., a group that represents state law enforcement interests.
"If an individual is clearly a major trafficker and everything he ever bought is dirty, no one has major heartburn. If someone owns 200 acres of land and there's drugs on a comer and the guy never knew it was there, then the rule of reason should kick in," Ms. Holden says. "You shouldn't be taking the whole farm if he didn't know it was there."
Taking Bradshaw Bowman's whole farm is exactly what the government is trying to do.
The 80-year-old man was arrested for growing marijuana, and the local sheriff has seized his 160-acre ranch in the breathtaking high desert area of Southern Utah.
A convicted drug dealer-turned-sheriff's informant blew the whistle on a handful of marijuana plants growing on Bowman's property.
Bowman's "Calf Creek Ranch" is 300 miles south of Salt Lake City, at the entrance to a National Scenic Vista area of stunning canyons.
The marijuana was found on a hiking trail far from Bowman's house.
"I've had this property for almost 2G years, and it's absolute heaven. I love this place. My wife's buried here," Bowman says. "I can't believe they're trying to take it away from me, and I didn't even know the stuff was growing there.
"I used to serve on jury duty, but at 70 they make you stop. In all my time sitting in the jury box, I never heard of the Constitution treated this way."
Garfield County Attorney Wallace Lee, who is prosecuting both the criminal charges and the civil effort to seize Bowman's house, says, "He's getting his day in court."
"The fact that he's 80 years old has no bearing on the case at all and certainly not with me," Lee says. "I'm out to prosecute a criminal case here, and it doesn't matter whose house it is."
Bowman's lawyer, Marcus Taylor, says:
"This is the classic example of the absurdity, injustice and almost immoral nature of forfeiture.
"You could hold that entire bundle of 67 plants in one hand."
With more than 9,000 flights under his belt, Billy Munnerlyn has survived lots of choppy air. But it took only one flight into a government forfeiture action to send his small air charter service crashing to the ground.
Munnerlyn and his wife, Karon, both 53, worked for years building their Las Vegas business. Their four planes - a jet and three props - flew businessmen, air freight, air ambulance runs and Grand Canyon tours.
"It wasn't a big operation, but it was ours," Mrs. Munnerlyn says.
Today, Munnerlyn is malting 22 cents a mile trucking watermelons and frozen car-rots across the country in an 18-wheeler.
He has filed for bankruptcy. He sold off his three smaller planes and office equipment to pay $80,000 in legal fees. His 1969 Lear Jet - his pride and joy - is being held by the federal government at a storage hangar in Texas.
Munnerlyn's life went into a tailspin the afternoon of Oct. 2, 1989, when he flew an old man and four padlocked, blue plastic boxes to the Ontario International Airport, outside Los Angeles.
His passenger was 74-year-old Albert Wright, a convicted cocaine trafficker. The plastic boxes contained $2,795,685 in cash.
But Munnerlyn says he didn't know that until three hours after they landed and Drug Enforcement Administration agents handcuffed him and took him to the Cucamonga County Jail. Munnerlyn was charged with drug trafficking and ordered to pay $1 million bail. Seventy-one hours later, he was released without being charged.
When he went to get his plane, a drug agent told him "it belongs to the government now" - a simple statement that launched a devastating legal battle that continues today. An informant had told Ontario Airport police that Wright would arrive Oct. 2 with a large amount of currency to purchase narcotics.
Police were waiting when the Lear landed. They watched Wright get off the plane. For the next three hours, agents followed him as he met two other people, picked up a rented van, returned to the airport and unloaded the plastic containers from Munnerlyn's jet.
Police followed the van to a residence about 20 miles away. They surrounded the van and four people nearby. All were identified as being major cocaine traffickers.
A search of the plastic boxes found $2,795,685.
At the airport, agents told Munnerlyn he was in trouble. They searched the jet. No drugs were found, but they seized $8,500 in cash that he had been paid for the charter.
"I guessed they would figure out I had nothing to do with that guy and his drug money, and give me my plane and $8,500 back," Munnerlyn says. He was wrong.
Two weeks later, drug agents showed up at Munnerlyn's Las Vegas home and office and carried off seven boxes of documents and flight logs.
It was just the beginning of the government's efforts to prove he was a drug trafficker and had flown for Wright for years. Munnerlyn says he didn't even know Wright was the man's name.
Several days before the seizure, Munnerlyn was contacted by a man identifying himself as "Randy Sullivan," a banker, who was willing to discuss financing a new aircraft that Munnerlyn had been telling business contacts he wanted to buy.
Munnerlyn agreed to meet him Oct. 2 at Little Rock Airport. "We were going to fly back to Las Vegas, where I was going to show him my operation and talk about him financing my purchase of a larger plane." Munnerlyn picked up "Sullivan" and four boxes of "financial records."
"He was a distinguished-looking, very old man dressed in a dark suit. He looked like a banker is supposed to look," Munnerlyn says.
They stopped in Oklahoma City to refuel. When they took off 45 minutes later headed to Las Vegas, "Sullivan" told Munnerlyn he had made a telephone call and had to go to the Ontario airport instead. They would discuss the loan at a later date, he told the pilot.
While en route, he paid Munnerlyn $8,300, the normal tariff for a jet charter, and gave him a $200 tip.
"I told the DEA that I never saw that man before in my life, and I've never had anything to do with drugs," Munnerlyn says. "All I want is my plane back."
Assistant U.S. Attorney Alejandro Mayorkas is still fighting to prevent that from happening.
In court documents Mayorkas filed, he acknowledged the government "will rely in part on circumstantial evidence and otherwise inadmissible hearsay" to try to justify the forfeiture.
The government "need not establish a substantial connection to illegal activity, but need only establish probable cause," the prosecutor wrote.
Mayorkas says the fact the aircraft flew into Los Angeles, "an area known as a center of illegal drug activity," is probable cause.
The prosecutor faulted Munnerlyn for not knowing what was in the boxes, but government regulations do not require charter pilots to question or examine baggage.
Munnerlyn wanted Wright to testify, but the government said he couldn't.
"He was the only guy other than me who could tell the court that we didn't know each other. But Mayorkas said they couldn't find him," Munnerlyn says.
At a three-day trial that began last Oct. 30, Mayorkas sprang a surprise witness. A ramp worker from Detroit's Willow Run Airport testified that he had seen Munnerlyn and Wright at his airport "in the fall of 1988." The witness, Steven Antuna, described Munnerlyn to a T, right down to the full reddish, gray-streaked "Hemingway-like" beard he had when he was arrested.
The only problem was that Munnerlyn didn't have a beard until the summer of 1989.
Mrs. Munnerlyn and her 31-year-old son took the stand and refuted the statements about the beard.
The six-member jury ruled that the plane should be returned to the pilot and his wife.
In December, Mayorkas asked for another trial - and held on to the plane. He said Munnerlyn's family members had lied.
But Munnerlyn submitted 51 affidavits from FAA and Las Vegas officials, U.S. marshals, bank officers, customers and business contacts sweating he did not have a beard in the fall of 1988.
Photos and a TV news tape of Munnerlyn being interviewed after rescuing a couple from Mexico after a hurricane, both taken that fall, showed him beardless. But the government kept the plane.
Munnerlyn and his wife shuttled between Las Vegas and Los Angeles more than 20 times.
"Each time we went we thought this nightmare would be over, but each time there was some new game that the government wanted to play," Mrs. Munnerlyn says.
First, Mayorkas demanded the pilot pay the government $66,000 for his plane.
"We didn't have any money left and we couldn't figure out why we should have to pay the government anything, when a jury said we were innocent," Munnerlyn says.
Mayorkas lowered the "settlement" to $30,000, still far more then the Munnerlyns could raise.
In April, Munnerlyn went to the U.S. Marshal Service's aircraft storage site in Midland, Texas. He climbed over, under and through his plane, which had been torn apart during the DEA search for drugs.
"The whole thing was a mess," he says. "That plane's going to need about $50,000 worth of work to bring it up to FAA standards again, to make it legal to fly."
In mid-June, Mayorkas made what he called a "final offer."
"We have to pay the government $6,500 to get back my plane, that a jury says shouldn't have been taken in the first place, and they want to keep the $8,500 that I was paid for the flight," Munnerlyn says.
Last month, when asked if the settlement request was fair, Mayorkas said:
"If he was innocent, he would have taken reasonable steps to avoid any involvement in illicit drug activity," Mayorkas says.
But he wouldn't detail what preventive measures Munnerlyn should have taken. The Munnerlyns are trying to borrow the money to get their plane back.
The bottom line in forfeiture ... is the bottom line.
And that, say critics, is the crucial problem.
The billions of dollars that forfeiture brings in to law enforcement agencies is so blinding that it obscures the devastation it causes the innocent.
A 10-month study by The Pittsburgh Press found numerous examples of innocent travelers being detained, searched and stripped of cash. Of small-time offenders who grew a little marijuana for their own use and lost their homes because of it. Of people who had to hire attorneys and fight the government for years to get back what was rightfully theirs.
Attorney Harvey Silverglate of Boston says: "There is a game being played with forfeiture. They go after the drug kingpins first, then when everyone stops looking, they tum the law and its infringement of constitutional protections against the average person."
Many people who have watched seizures and forfeitures burgeon as s law-enforcement tool say change must be made quickly if the traditional American system of justice, based on the constitutional rights of its citizenry, is to remain intact.
When Nashville defense attorney E. E. "Bo" Edwards cites remedies, he lists first the need to make forfeiture possible only after a criminal conviction. Edwards heads a newly created forfeiture task force for the National Association of Criminal Defense Lawyers.
As the forfeiture law now stands, property owners who never were charged with a crime or were charged and cleared still can lose their assets in a forfeiture proceeding.
Under forfeiture, the government must only show that an item was used in a crime or bought with crime generated money. The government doesn't have to prove the property owner is the criminal.
Changing the law to allow forfeiture only after a property owner's criminal conviction would ensure the government proves its cases beyond a reasonable doubt, Edwards says.
The legal fiction "of property violating the law, that 'property' can do wrong, is ludicrous and offensive to the American scheme of government," says Edwards. "Arresting a plane, for instance, when there is no proof the pilot broke any laws is not only an abuse of our judicial system but a moronic game."
The narrow legal view holds that because forfeiture usually is a civil case, it involves monetary penalties and not punishment, like jail, that takes away personal freedoms.
Taking that narrow view, it seems unnecessary to include the due process protections of criminal court such as the presumption of innocence I - because the potential penalties never would be as severe as those in a criminal case.
But prosecutors and appeals courts who say forfeiture is not a punishment are "denying reality," says Thomas Smith, head of the American Bar Association's criminal justice section. "The law was enacted to punish, and if you ask anyone who has lost a house or a bank account to it, they will tell you it is punishment."
Allowing forfeiture only in the event of a conviction also would eliminate the risks owners are exposed to when they face a criminal charge against them in one courtroom and the civil forfeiture case in another.
Under criminal and civil proceedings, the defendant has a constitutional guarantee that he needn't testify to anything that may incriminate him.
But because a person may face two trials on the same issues, it raises the possibility that a civil forfeiture case could be brought in the hope that information divulged there could later shore up an otherwise weak criminal case.
The gusto for seizure is weakening the traditional protections that surround police work. The definition of "reasonable search and seizure," for example, has been stretched to include tactics that some believe aren't reasonable at all.
The U.S. Supreme Court this June said it is legal for police - wearing full drug-raid gear and with guns showing to board buses about to depart a station and ask random passengers if they will consent to a search.
In his dissent, Justice Thurgood Marshall branded the tactic coercive and in violation of the Fourth Amendment. "It is exactly because this choice' is no 'choice' at all that police engage in this technique," he wrote.
Training films for state police or drug agents in Arizona, Michigan, Massachusetts, Texas, Louisiana, New Mexico and Indiana show that drug searches involve much more than a visual scan or quick hand search.
Officers in the films obtained by The Pittsburgh Press didn't just look. They opened suitcases in car trunks and pulled out back seats, side door panels and roof linings. In several of the films, they went so far as to remove the gas tank. When they're done, they may or may not put the car back together. The owner's ability to collect damages will depend on the protections offered by state law.
Grady McClendon had to fight in court for nearly a year to get back about $2,300 taken by police in Georgia following a highway search. His money was seized after police said they'd found cocaine in the car. Lab tests later showed it was bubble gum, but for 11 months police held McClendon's money without charging him with a crime.
During the search, McClendon says, "they made us stand four car lengths away. If I'd have known that, I wouldn't have said yes, because I couldn't see what they were doing in the dark. That isn't what I expected in a search."
The public is often left in the dark about how the proceeds of forfeiture are spent.
A Georgia legislator who this year drafted a law that added real estate to the items that can be taken in his state, also inserted a "windfall" provision for funds.
Under the provision, once forfeiture proceeds equal one-third of a police department's regular budget, any additional forfeiture money will spill over to the general treasury.
State Rep. Ralph Twiggs says he worried that once police began seizing rea) estate it would bloat their budgets, especially in Georgia's many small towns. '41 was looking at all the money going into the federal program and I was thinking ahead. I don't want gold-plated revolvers showing up."
Gold-plated revolvers may be an extreme worry. But as it now stands, it is very hard to determine how police spend their money.
The money or goods returned to local police departments through the federal forfeiture system do not have to be publicly reported. Congress, in its zeal to pass this feel-good (drug) law," says Philadelphia City Council member Joan Specter, "apparently forgot to require an accounting of the money.
"The happy result for the police is that every year they get what can only be called drug slush funds," says Specter.
A department that receives forfeiture funds from cases it pursued through federal court or with the help of a federal agency is merely required to assure the U.S. attorney in writing that it will use the money for "law enforcement purposes." And even that minimal requirement wasn't met in Philadelphia.
The Philadelphia police didn't file the forms last year, says Specter, and used the money to cover the costs of air conditioning, car washes, emergency postage, office supplies and fringe benefits.
"That would be fine," she says, "except that the intent of the federal law was for the money to go back into the war on drugs."
It also meant Philadelphia city council "made budgetary decisions in the absence of complete information." At a time when $4 million in forfeiture funds was on hand or in the pipeline for Philadelphia, the city's chemical lab, where drugs are analyzed, had a backlog of more than 3,000 cases, she says. The lab bottleneck caused court delays and prolonged jailing of suspects before their trials began, Specter says.
The Philadelphia Police Department had estimated $1.2 million would double the lab's capacity, but the forfeiture funds were spent elsewhere. "Who should be setting the priorities?" she asks.
Sen. Arlen Specter of Pennsylvania echoed his wife's view in an address to colleagues in the U.S. Senate. The absence of public accounting by the police who received federal shared funds, he says, "is a glaring oversight in the law, which ought to be corrected."
What legislators have done, says Chicago defense attorney Stephen Komie, "is emboldened prosecutors and police to create this slush fund of inappropriate money for which nobody votes a budget."
The federal forfeiture fund itself, which has taken in $1.5 billion in the last four years and expects to get another $500 million this year, had its first standard audit only last year.
The relationship between state and federal forfeiture systems is thorny in other respects. Washington, D.C., helps local law enforcement do end runs around state law.
The process is formally known as "adoption" - and U.S. Rep. William Hughes of New Jersey, who devised it, now says he made a mistake that he would like to undo.
In adoption, a U.S. attorney's office will take over prosecution of a case developed entirely by local police. Theoretically, local law enforcement officials go to federal prosecutors because the federal government has more resources available to dissect complicated criminal enterprises and its jurisdiction reaches beyond state lines.
But more often, The Pittsburgh Press review of forfeiture found, the cases are passed along because local police find state laws too restrictive in what can be seized and how much money police can make.
If local departments choose to use the federal system, "then it seems to me it's entirely appropriate for us so long as the resources are there and what not - to help in that process," says Associate Deputy Attorney General George Terwilliger 111, the head of forfeiture for the Justice Department.
"But I don't know that we'd encourage it."
But his department clearly does. The Justice Department's "Quick Reference to Federal Forfeiture Procedures" says on Page 203 that "adoptive seizures are encouraged." Hughes says including "adoption" in his legislation "was a mistake," because it has become a way for police to game the forfeiture system.
When he introduced legislation that would have ended federal adoption,"it went nowhere, because law enforcement rallied and convinced everyone they needed those cuts of the pie."
Local police have started using the federal courts to do end-runs around state laws that earmark forfeiture money for the likes of schools instead of cops, or else guarantee police less money than they would get in federal court. There, the cut for local law enforcement can be as much as 80 percent of the value of forfeited items. But it's not always money that propels police into federal court. It can also be differences over prosecution.
In Allegheny County, for instance, District Attorney Robert Colville will not pursue a forfeiture unless he first wins a criminal conviction against the property owner on a drug charge. Local police know that and avoid Colville's office and go to federal court - when they aim to seize items from owners who aren't even charged with a crime, Colville says.
The departments argue their approach is legal, "but for me, legal isn't necessarily fair," Colville says.
"It was never intended states would be able to use the federal process to avoid state policy. (Former Attorney General Dick) Thornburgh in particular" has supported adoption. "We want to clean that up," Hughes says, adding that "for the chief law enforcement office of the country to permit that process" of end-runs is "absolutely wrong."
Colville also believes the law's requirement that the money go for enforcement purposes restricts other, equally beneficial, uses. He would like to use more money for drug prevention and rehabilitation programs uses that are strictly limited under federal sharing rules.
For example, federal guidelines permit forfeiture funds to be used to underwrite classroom drug education programs but only if they're presented by police in uniform, Colville says. He'd like to send in health officials as well, to "get a different, equally important message across.
"I've come to the belief as a prosecutor that aggressive prosecution alone won't solve the problem. Guys I arrested 25 years ago when I was a policeman I still see coming back into the system. We need to address under lying social and economic problems He has advocated using forfeiture money for the likes of summer jobs programs in drug-plagued neighborhoods, an idea rejected by the federal government.
Hughes, the New Jersey congressman, says he regrets earmarking all the federal forfeiture funds for law enforcement purposes, but cannot find support for changing the stipulation.
He originally thought police would need every dime they took in to pay for complicated investigations and assumed the forfeited goods would just cover the cost. Once the kitty grew, he figured, then money could be set aside for areas such as drug treatment.
But the coffers grew much faster than expected and now it is proving hard to get police to give up the money "we never dreamed we would be seizing $1 billion. Now the coffers are overflowing, but using the money in different ways is a touchy point at Justice."
Not even appeals from Louis Sullivan, secretary of Health and Human Services, compel a change. During an inter-view in Pittsburgh last week, Sullivan said he has asked that forfeiture funds go partially toward drug rehab but Justice turned him down repeatedly.
Justice recently turned down a proposal from Jackson Memorial Hospital, a cash-poor public hospital in Miami, to use $6 million seized during a south Florida money-laundering case to build a new trauma center.
The hospital is known in the industry as a "knife-and-gun-club" because of the volume of shootings and stabbings it handles. Police investigate nearly 85 percent of the hospital's cases.
In its proposal, Jackson suggested training medical staff to spot injuries that are the result of a crime, adding on-call photographers who would specialize in taking pictures of victims for use during trials and improving preservation of damaged clothing, bullets and other pieces of evidence.
The idea had bipartisan support from Miami's congressional delegation, Metro-Dade police and the U.S. attorney's office in Miami.
The memorandum from Justice rejecting the idea came from Terwilliger, who wrote that seized money must go to official use which "typically, has included activities such as the purchase of vehicles and equipment," including guns and radios.
But, says Hughes, "if the purpose is to deal with the drug problem effectively, Justice's reluctance to consider new ideas - particularly when it comes to treatment programs seems to me to undercut their ultimate goal."
The Justice Department, which champions forfeiture as the law enforcement tool of the '90s, declines to talk about where the law is headed.
"I don't think it's appropriate in the context of a press interview to discuss potential policy and legislative issues," says Terwilliger.
But in not talking, the government 'masks the details of the total emasculation of the Bill of Rights," says John Rion, a Columbus, Ohio, lawyer.
"The taxpayer thinks this forfeiture stuff is wonderful, until he's the one who loses something. Then, he realizes that it's not just the criminal's rights that have been taken away, it's everybody's."
In Detroit, Wayne County Sheriff Robert Ficano is an unabashed supporter of grabbing the spoils of the war on drugs, but he tempers his fervor for forfeiture with controls.
Ficano appears to be running precisely the type of drug interdiction program authors of forfeiture and seizure legislation envisioned.
It aggressively pursues drug criminals, it has procedures that protect innocent citizens, and it shows compassion - right down to the teddy bears narcotics agents carry to drug raids on homes where children live.
In addition, it turns forfeited money right back into more drug investigations. It can do that, because the confiscated money has allowed it to create a new interdiction team devoted to stopping narcotics.
"We started with two officers out of the Wayne County Jail and we wanted to see if they would be able to seize enough in their raids, for them to pay for their own salaries," he says.
That first year, in 1984, they seized $250,000. "Last year we seized over $4 million. And we've been able to completely fund the narcotic unit out of these forfeited funds," Ficano says.
Today he has 35 officers, 3 drug dogs and all the weapons, surveillance and communication gear needed to equip a modem drug team, with a $2.2 million budget.
"There isn't a dime of it from tax-payers' money that's used. So, in essence, you have the crooks paying for their own busts," he says.
The public's fear of drugs helps win support for forfeiture. "However, we in law enforcement have to ensure that a balance is always kept. You can't violate people's rights.
"Whenever you push a law, a tool, as far as you can go and get up toward the edge, it becomes a difficult balance. There's a responsibility that goes with it.
"In the area of forfeiture and seizure, I think we've probably gone as far as we can and still be accepted by the public and by the courts. I think we're near that edge," the sheriff says.
To maintain balance, Ficano instituted a series of steps that had some of his 900 deputies grumbling at first that he was going soft.
One of his major targets, he says, is closing crack houses, shooting galleries and other residential drug operations.
"We want these properties cleaned up and under the law we can seize them, but a surprising number of owners of drug houses have no idea of the activity, so we make sure they know what's going on," the sheriff says.
Ficano sends owners two written warnings that illegal activities are occurring on their property and that repeated arrests have been made.
"The first time we do it, we tell them what we found on their property and some of the things they can legally do to get these drug traffickers out," Ficano says. "We'll warn them a second time. The third time, we move to seize the house."
He admits he could make more money if he grabbed the property at the first violation, as many other departments do.
"But the motivation shouldn't be just seizing property. If we can get the public, the owners, to stop the trafficking, then we've accomplished an important goal," he says. "The warnings are needed because you just shouldn't wipe someone out, someone who may be innocent, without giving them a chance." He also gives warning to drug buyers driving into the county.
In some crack areas, he says, neighborhood streets that in the middle of the afternoon should be peaceful and tranquil look like the parking lots at the University of Michigan stadium on a football Saturday.
In conjunction with local police apartments, Ficano took out newspaper ads cautioning: "Buyers of Illegal Drugs, Take Notice." The ads listed descriptions of some of the 210 cars that have been seized from recreational drug users and the neighborhoods of their owners - and warned drug buyers to stay out of Wayne County or risk losing their vehicles.
Similarly, he gives a couple of chances to innocent owners of cars used by someone else in drug trafficking. After the first warning, they can claim innocence, that they didn't know that someone else was using the car to buy drugs. The second time the car is stopped, it costs owners $750 to get it back. If there's a third time, it's a seizure.
"A lot of these people need the cars to go to work or school, so we give them every chance we can, but it's got to stop."
He bristles when asked if he's soft on drug traffickers.
"Look at our arrest records - over 300 raids and 1,000 arrests last year- we're not soft at all," Ficano says. "We can enforce the law and be aggressive about it, but we can also do it with some compassion and the common sense that is supposed to come with the badge."
Safeguards and tight controls are a must, he insists.
"We do not want cowboys. We do not want officers who follow the typical stereotype drug cop from 'Miami Vice' and other TV shows. Seizure is an important tool, but we'll lose it unless we keep a heavy emphasis on respecting individual fights."
Sitting atop the TV set in his office is a very un-"Miami Vice" prop: an 18-inch, black-and-white speckled teddy bear.
"The biggest deputies we have can be distressed watching a child react to a parent or both parents being arrested after a drug raid. It eats away at you," the sheriff says.
The bears are kept in the trunk of the unit's cars and vans, he says.
"If there is a raid or property is being seized and there are children involved, our deputies can pull the bears out to, hopefully, calm down the children," Ficano says.
It's difficult to envision a brawny SWAT officer, decked out in a helmet and bullet proof vest, carrying a gun in one hand and a teddy bear in the other. But the narcotic unit's weekly search warrant and arrest report has a column headed "Number of Bears."
The reports for the first two weeks of May show that two of nine bears given out were given as officers seized property.
"If there's something that can be done to reduce the pain that accompanies some of the things we have to do, why not do it?" Ficano asks. The one area Ficano was hesitant to discuss in detail was the activity of his men as part of the Drug Enforcement, administration's joint task force at Detroit's Metro airport.
Some lawyers, including the American Civil Liberties Union, have criticized the DEA team for being overzealous in seizing cash from suspected drug dealers.
The sheriff did say safeguards exist to prevent improper stops, but added that DEA directed him not to discuss his airport work.
While his drug unit is among the biggest moneymakers in the country, and the forfeited funds are key to financing that unit, he says there is a 'very clear limit" on how far he will go.
"These new laws open all sorts of new areas for seizing the assets of drug traffickers. We'll use accountants, people with business and banking expertise - all sorts of nontraditional police skills to try to track and forfeit every dollar these dealers are making.
"But there's a line that we won't cross," Ficano says.
Top, Part 1, Part 2, Part 3, Part 4, Part 5.
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