Americans for Forfeiture Reform

AFR is Smart on Crime

2011-02-14T20:36:47Z

Americans for Forfeiture Reform is a proud member of the Smart on Crime coalition, a coalition “comprised of more than 40 organizations and individuals, who participated in developing policy recommendations across 16 broad issue areas.”

Last week, the Smart on Crime coalition released a document advocating broad-based criminal justice system reform in a number of core areas, including asset forfeiture abuses:

Curb the abuses of federal and state forfeiture powers. Congress should pass comprehensive legislation to curb abuses of federal and state forfeiture powers and fulfill the original intent of the bipartisan Civil Asset Forfeiture Reform Act and related state reforms. The Administration should issue an executive order or encourage agency rulemaking to limit or forbid the use of equitable sharing to circumvent state law.

The Smart on Crime coalition is a project organized by the Constitution Project, a non-partisan organization that develops bipartisan consensus and policy positions on things like criminal justice system reform.

On the topic of asset forfeiture, Americans for Forfeiture Reform is joined by the National Association of Criminal Defense Lawyers (represented by Kyle O’Dowd) and the Institute for Justice (represented by Scott Bullock). Policy recommendations for the asset forfeiture section of the Smart on Crime Document were developed by Scott Bullock, David B. Smith (NACDL), and Roger Pilon (Cato Institute). Below is a clip of Scott Bullock (5:30) detailing the fundamental problems with the use of asset forfeiture laws in America in an interview recorded for the Smart on Crime launch:

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David Post on outrageous Homeland Security domain name seizures

2011-02-11T05:39:45Z

David Post remarks at the Volokh Conspiracy:

Our ever-vigilant Homeland Security agents, having apparently decided that they have too much time on their hands and have taken care of the Really Bad Guys, are helping to make sure that we are all safe from unauthorized transmissions of the Super Bowl broadcast, and have “seized” a number of domain names belonging to Internet sports retransmission sites. I blogged about this a while back [see “Copyright Enforcement Tail Wags Internet Dog, Cont’d; or, What the Hell Ever Happened to Due Process?”, so I won’t repeat the arguments I raised there — if this isn’t an unconstitutional deprivation of due process, it damned well oughta be. There’s a good reason we don’t generally allow agents of the State to march into judge’s chambers and deprive people of their property without an adversary hearing, viz., they’re likely to make errors that can be difficult to correct ex post. These ridiculous seizures — seriously, don’t Homeland Security agents have better things to do??? — are good illustrations; some of the sites turn out not to be retransmission sites at all, but rather indexes and compilations of other sites where sports content is available (such as the Spanish site listed in the Huffington Post article, Rojadirecta.org). Now, there are circumstances in which sites linking to other infringing sites are themselves liable for infringement, and circumstances in which they’re not; that’s a pretty nuanced analysis (involving, among other things, an inquiry into the “actual knowledge” on the part of the linking site that the linked sites contain infringing content, and application of a “safe harbor” in Section 512(d) of the Copyright Act for providing “information location tools.” And under Spanish law, too, things are complicated and nuanced — apparently, a Spanish court recently decided this very question, and held that the Rojadirecta.org site was NOT liable for copyright infringement. But now federal agents have been able to shut it down, based on nothing more than the affidavits from copyright holders alleging infringement (and the mere happenstance that the ORG domain registry is located in the US, leading to the absurd fiction that the domain names can therefore be “seized” if they are connected to unlawful activity).

Oh, and it’s a total waste of time — did I mention that? A few hours after the site went dark after the “seizure,” it was back up an running using a different domain name (.ES instead of .ORG, outside the jurisdiction of the US courts).

Post is a professor of law at Temple University’s Beasley School of Law, and an expert in cyberlaw.

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Update on the NOAA asset forfeiture scandal

2011-01-28T17:28:40Z

The following editorial was published in Massachusetts’ Gloucester Times on January 23rd:

A full year after the release of the preliminary report from the office of Department of Commerce Inspector General Todd Zinser, there are tons of serious questions still hovering over NOAA law enforcement’s oppressive dealings with fishermen and the fishing industry.

Yet one answer that seemed clear within days after the January 2010 release of Zinser’s findings is even more obvious today.

The National Oceanic and Atmospheric Administration has no interest whatsoever in reforming its vindictive regulation and enforcement oversight of the commercial fishing industry, and bringing to justice those who shamed the agency and any sense of American justice.

And the sooner that members of Congress — especially those who represent home states to the commercial fishing industry — realize that, the better.

NOAA is not about confronting and dealing with misconduct and corruption. It is about protecting it. It is not about transparency. It is about covering things up.

It is not about fairness and complying with its own federal statutes — balancing the needs of an industry with those of the environment, as required by the Magnuson-Stevens Act.

And this rogue arm of the Obama administration — which absurdly sits within the Department of Commerce — is most of all not about jobs. It is about pushing people out of work to further an environmental agenda aimed at steering control an indigenous U.S. industry still built on the backs of family-owned independent businesses into fewer and larger corporate hands.

How else is there to explain that, one year after a litany of scathing findings from Zinser’s initial report, nobody responsible for this scandal has been penalized in any meaningful way?

How else to explain NOAA head Jane Lubchenco arranging for soft landings for the worst offenders — even while telling Congress, “I own the problem, and I intend to fix it.”

It is time — past time — for the region’s congressional delegation, including U.S. Sens. John Kerry and Scott Brown, along with Congressmen John Tierney and Barney Frank, to call for an independent criminal investigation into Zinser’s findings.

Zinser reported wildly disproportionate treatment of New England fishermen, extensive misuse of millions of dollars of an asset forfeiture fund, document shredding and an attempt to shut down the Gloucester Seafood Display auction that even included an unauthorized, after-hours forced entry into the auction that was documented by Gloucester Police.

Yet, after Zinser issued his initial findings, Dale Jones Jr., the former director of fisheries enforcement in New England, was kept on the job for months. When he was finally deposed in April, NOAA tried to do it secretly. Finally, under pressure from Congress, Lubchenco announced that Jones had been reassigned as a fisheries program specialist, a job that comes with a salary almost as good as his previous one — $155,000.

As Frank put it at the time, “Apparently the reward for highly questionable actions (at NOAA) is a paid vacation.”

Jones is hardly alone. Charles Juliand, the senior attorney for enforcement and litigation in NOAA’s Gloucester-based Northeast Division, was reassigned to work on matters related to the Gulf oil spill — a move that must inspire all sorts of confidence among those who truly care about the environment.

And then there’s Andrew Cohen, the former National Marine Fisheries Service agent in charge of Northeast law enforcement, who’s obscene enforcement tactics at one point even drew a harsh rebuke from a federal judge — yet seem just one with Lubchenco and the Obama administration itself.

It was Cohen who once reportedly bragged that he and his crew of federal fisheries thugs were accountable to no one. Well, it looks like he was right.

This blatant obfuscation and disrespect shown everyone from Congress to Gloucester’s fish piers is coming from the top. Lubchenco has no intention of making changes or being transparent to the public that pays her and her agency. She won’t, unless Congress forces the issue with the hiring of an independent criminal — not administrative — prosecutor this case has needed from the start.

It has been a year, and Lubchenco and her minions have had more than enough time to act.

She hasn’t. Congress must — now.

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The hypocrisy here is so thick I could cut it with a knife…

2011-01-28T17:03:32Z

The UK’s Daily Mail writes today about the execution of a 9 year old Hispanic girl and her father by members of an anti-immigrant militia group in Arizona. The story itself is sad, and a troubling indictment of American attitudes toward immigrants, but these excerpts caught my eye (emphasis mine):

Shawna Forde, the head of the Minutemen American Defence group, is on trial accused of two charges of first degree murder.

She is allegedly orchestrated the attack on the Flores family with two male accomplices, due to face face court in March.

Police claim that Forde believed Mr Flores was a drug trafficker and would have cash and goods in the house which they could use to fund their patrols…

Both were in camouflage. Mrs Gonzalez said one was a heavy-set woman while the other was a man whose face was blackened with greasepaint. He was armed with a rifle and pistol…

Forde allegedly funded her by group by robbing the houses of suspected drug dealers. When she reportedly proposed one such raid to two potential accomplices, they phoned the FBI – who did nothing because they believed the suggestion was too ludicrous to be true.

My first thought while reading this story was My god, they’re doing exactly what every narcotics SWAT team in the country is doing right now.

The only truly shocking part about this story is that these are private citizens, vigilantes, mimicking a policing strategy that is actually quite routine. The 1984 passage of the Comprehensive Asset Forfeiture Act allowed the Department of Justice to expand asset forfeiture programs, and, for the first time in American history, to keep the revenue directly for the prosecution of the Drug War. Over time, this funded the militarization of domestic law enforcement, as billions of dollars would go to purchase .50 caliber rifles, tanks, planes, SWAT gear, and other military technologies for police departments all over the country.

At a micro-level, this translates to SWAT teams using military force to prey on drug users and dealers, looking for cash and other valuable property. This is even reflected in law enforcement slang; SWAT teams and narcotics law enforcement are often called “meat-eaters” by other law enforcement, because they “eat what they kill”.

Arizona law enforcement is particularly brutal and callous in this respect. We have all heard of Sheriff Joe Arpaio’s reign of terror; here, for those of you who don’t remember, is the story of Arpaio’s SWAT team raiding the wrong house, burning it down, and chasing the dog, who had caught on fire, back into the collapsing inferno. And yes, Arpaio collects tens of millions of dollars in forfeiture money through these raids, and funds his private army through this money.

It was only a matter of time before gangs would catch onto this tactic and begin mimicking it. And it was only a short while after that Ms. Forde and the right wing militia groups in Arizona realized that this could be an effective strategy for their own evil aims.

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Michigan police use asset forfeiture to take cash from patients

2011-01-21T11:28:40Z

Over at The Agitator, Radley Balko takes Michigan police to task for using asset forfeiture laws to seize cash from patients and employees of medical marijuana dispensaries operating under Michigan state law, under the justification that the dispensaries knew they were selling to street dealers. Excerpt:

Earlier this month, police in Oakland County, Michigan raided a medical marijuana dispensary in the town of Oak Park. The deputies came in with guns drawn and bulletproof vests, with at least one wearing a mask.

They made no arrests, but they did clean the place out. The confiscated all of the dispensary’s cash on hand and—in a particularly thuggish touch—also took all of the cash from the wallets and purses of employees and patients. In this update, police officials say the raid was the result of street dealers telling police they were buying marijuana from the dispensary. I suppose we’ll see in time if that’s true, and if it is, if the dispensary was actually aware that it was selling to dealers. But at first blush, the claim sounds like a pretty good way for street dealers to put a legitimate competitor out of business.

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California prosecutor uses forfeiture funds for home security, legal defense

2011-01-19T18:19:53Z

From the Press-Enterprise (emphasis mine):

A home security system for former Riverside County District Attorney Rod Pacheco, who was threatened in a newspaper ad during his time as the county’s prosecutor, cost $18,764. The money came from asset forfeiture funds.

The amount included the installation, maintenance and removal of the system, according to a Jan. 13 letter from the district attorney’s office. The information was supplied after The Press-Enterprise filed a California Public Records Act request.

The amount spent on the home security system, and the source of the funds, were the subject of speculation during Pacheco’s time in office.

In January 2008, the office disclosed it had spent more than $163,000 in county funds on Pacheco’s personal security during 2007, most of it after a classified ad was published that Pacheco said appeared to threaten him and his family.

That report was limited to county employee salaries and benefits, expenditures on county vehicles and meals.

It did not break down security equipment expenses and source of funds. The Jan. 13 letter also said former Assistant District Attorney Kelly Keenan approved the payments for the equipment, “under the authority of the District Attorney.”

State asset forfeiture funds are set aside for police and prosecution offices.

The money is derived from, among other things, the auction of material seized during criminal investigations, including cars and homes. It is typically used to buy equipment and other supplies for the agencies.

The disclosure about the security equipment was the second in recent days over Pacheco’s use of the funds for other matters.

More than $104,000 in asset forfeiture funds were used to pay private attorneys in December to defend a lawsuit Pacheco filed against Riverside County officials.

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Corrupt, from start to finish

2011-01-17T23:58:19Z

It is a well-documented fact that the asset forfeiture process in American federal and state law is a process wracked by corruption, from the police officers who pocket “their cut” of cash seizures to the police chiefs, sheriffs, and prosecutors who begin focusing on finding and seizing cash or seizable property at the expense of crimes like rape, murder, and drunken driving. Slush funds are common, and we know of many law enforcement officers who have bought luxury yachts, trips to Vegas, tanks, and other expensive toys for their official and personal presences. We know of law enforcement officials who refuse to bow to any elected official, financing their own personal SWAT teams through seizures from unwitting black and Hispanic travelers, college students, and low-income drug addicts (who are easy targets, as they are often unsympathetic victims, being usually of low income, education, and social status).

One of the aspects of the asset forfeiture system that is rarely documented is the corruption at the end of the process. The disposition of most seized property is an auction of some variety; the US Marshals Service is the primary vessel for taking forfeited property to auction at the federal level, and local auctions see what property is disposed of by local and state law enforcement agencies.

As it turns out, the practice and conduct of these auctions has been rank with corruption. From the NYT:

An arm of the United States Marshals Service undervalued what could amount to untold millions of dollars in assets forfeited by white-collar criminals — including some from the family of Bernard L. Madoff — and sold them for far less than they were worth, according to a lawsuit filed in federal court in Manhattan.

As a result, the lawsuit suggests, crime victims, including some who lost fortunes in the Madoff case, may have been deprived of millions of dollars in restitution.

The complaint filed in the case contains a range of accusations about the actions of Leonard Briskman, the leader of the marshals unit. It says that assets were sold without public notice or competitive bidding, and that Mr. Briskman assessed the value of certain assets, found buyers through his “business contacts,” and kept a secret bank account to which government auditors had no access.

…

While the lawsuit does not detail the potential losses to the Asset Forfeiture Program and, by extension, to crime victims, it cites Mr. Briskman’s handling in early March of a minority interest in the Delta Fund, which had been held by Ruth Madoff. The fund came under the purview of the complex assets group.

“During the sale, it became evident that the sale price did not have a corresponding valuation by an independent qualified professional, and that it was patently discounted sharply below fair market value,” the lawsuit alleged. “Upon discussion, it also became clear that Briskman had not sought multiple prospective buyers in the open market for this asset.”

Later in March, when Mr. Aryai reported his findings to his superiors at Forfeiture Support Associates and in the Marshals Service, he was transferred so that he reported directly to Mr. Briskman, according to the lawsuit. When Mr. Aryai tried to add his new supervisor to his professional networking profile on the Web site LinkedIn, he found that Mr. Briskman did not list himself as an employee of the Marshals Service, but as the chief executive of Asset Valuation Advisors.

When Mr. Aryai sought to look into Mr. Briskman’s company, he found that it “held itself out as a business with experience in the disposition of distressed assets, with examples that shockingly appeared to be U.S.M.S. forfeiture matters,” the complaint said.

The Assets Forfeiture Fund of the Justice Department was created through the Comprehensive Forfeiture Act of 1984, which did two important things for the purpose of this discussion. First, it allowed the “equitable sharing” of federal forfeiture money with cooperating local and state law enforcement. Second was the creation of the Assets Forfeiture Fund of the Justice Department and the Customs Service Fund (now the Treasury Fund). The impact of these two provisions fundamentally changed American law enforcement in a variety of ways.

First, the Equitable Sharing program has functionally federalized every state and local law enforcement agency that receives non-appropriated forfeiture money through federal agencies, not Congress or any state or local legislative body. Combined with the independence of forfeiture funds from legislative appropriations and oversight, we find that there is no real check on abuse in the system. In this way, police agencies across the country have become disconnected from the interests of the people they serve in some rather fundamental ways as the financial incentive and structure of the forfeiture system provides them with incentives to militarize domestic law enforcement and enforce laws in ways that communities around the nation are becoming increasingly uncomfortable with. Consider the emergence of SWAT raids, which occurred at the rate of roughly 300 annually in the United States during the early 1980′s. By 2005, that number was estimated at 50,000, and SWAT policing has lately come into public focus as the number of “wrong-door raids” and shootings of innocent bystanders continue to escalate.

And as Bryan Aryai’s lawsuit indicates, the unintended consequences of allowing the Justice Department control of its own forfeiture fund allowed well-connected, protected bureaucrats to plunder wantonly from the public till. From this perspective, the Department of Justice is as corrupt as many third world governments (many of which the DEA supports with surveillance technology, cash, and weapons).

It is not necessary for politicians to cede ground on fundamental checks and balances in government. We can protect society through just and fair laws, as long as the lines of power are clearly drawn. When executive branch agencies control their own funding, they set their own protocol and practices; when these agencies wield the awesome police power of the state, the checks on their actions, their funding, and their independence should be strong and robust.

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Right on Crime is right on asset forfeiture

2011-01-06T01:20:19Z

We’re happy to announce that we’ll be working with the newly formed Right on Crime policy project on asset forfeiture reform! Right on Crime is a project of the Texas Public Policy project, and represents one of the few serious conservative efforts to engage criminal justice issues. Over at Reason Magazine, Radley Balko notes:

…the project is driven by serious argument, thoughtful policies, and honest discussion. It’s a refreshing and important addition to the public debate. I hope the big names who have lent the site quotes and endorsements will also provide some cover for Republican politicians and policy makers to consider heterodox positions. If that happens, for the first time in a generation we could have a real public discussion about crime.

We might remind readers that the American conservative movement is one of the places where asset forfeiture reform finds its most fervent supporters, including and especially the late Representative Henry Hyde from Illinois. Hyde introduced asset forfeiture reform legislation in Congress as early as 1993, an effort that culminated seven years later with the passage of the Civil Asset Forfeiture Reform Act of 2000. We hope to see a reform movement again form, and conservatives of all stripes are a vital part of that effort.

I might more broadly note that asset forfeiture reform is an effort that finds traction at almost every point along the political spectrum. Only the most extreme ideologies support the notion that government can arbitrarily take property from citizens without due process and for its own sustenance.

Next month, you’ll find me (and perhaps a couple other AFR staff members) at the Conservative Political Action Conference (February 10-12) and the 2011 International Students for Liberty Conference (February 18-20). Both conferences are in Washington DC; leave a comment if you’d like to say hi at either one.

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Vote for the worst prosecutor of 2010!

2011-01-03T18:39:29Z

Over at The Agitator, Radley Balko has a poll for the worst prosecutor of 2010. As you might guess, some of their official misconduct comes in the form of pre-trial asset forfeiture designed to bankrupt defendants before they get to trial. An excellent example of this is the nefarious Tanya Treadway, a US prosecutor who uses that strategy to great effect to profit from the prosecutions of doctors, particularly those providing services to patients in severe pain.

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Forfeiture victim: Robert Petricci

2011-01-02T19:46:43Z

Robert Petricci, a businessman from Hawaii, has a fascinating and tragic story of his experience with forfeiture in Hawaii. Robert also suffers from severe arthritis, and consumes medical marijuana for pain. A few years ago, he was the victim of a SWAT raid searching for marijuana, and went through what I can only describe as a legal nightmare that has left him bankrupt and the victim of extortion by forfeiture, as he is currently working to meet an October 1st, 2011 deadline to make a $75,000 cash payment to the prosecutor, or the prosecutor will seize his house and the property it is located on. I might note that Robert owns a lumberyard and exports rare Hawaiian hardwoods of excellent quality.

The Hawaiian state forfeiture laws are bad; they let law enforcement full discretion to keep anything they take. Worse, the DEA has for years been using Hawaii as a “test state”; it’s far away and isolated from the rest of the United States, so when the DEA wants to test new technology or tactics of questionable legality, they test them in Hawaii first. It’s easy to contain stories of police misconduct or abuse in Hawaii, and the DEA can establish a legal precedent in a state that they pretty much control.

Robert’s story has been hard to get my head around. It is part of a bigger story about Hawaii, SWAT policing, and corrupt narcotics enforcement that is undeniably far worse than any drug problem in Hawaii, and I am sorting through a pile of affidavits from victims and witnesses of amazing corruption and official wrongdoing. I am working on a series of articles on Robert’s case and narcotics enforcement/asset forfeiture in Hawaii, but for now, I encourage you to watch Robert’s testimony to the Hawaii County Council about his story.

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