Rudy Ramirez never expected to become a statistic in the War on Drugs when he
set off to buy a used car, $7300 in cash at the ready, in January 2000.
Ramirez, who lives in Edinburg, Texas near the border with Mexico, had spotted
a listing for the used Corvette in a magazine and wanted it badly enough that
he talked his brother-in-law into accompanying him on a thousand mile road trip
to Missouri to make the purchase. When Ramirez was pulled over by police in
Kansas City, however, the tenor of the trip changed.
Dunn was an Associate Producer for FRONTLINE's "Drug Wars"
"They asked if I had any money with me, and I said yes," recalls Ramirez. "I
didn't think they would take it away. I had nothing to hide." But the
trajectory of the rental car, and the piles of cash, suggested otherwise to
police--who suspected him of trafficking drugs from the Mexican border. As
Ramirez tells it, he was detained at the side of the road for hours while his
car was thoroughly searched and inspected by a drug dog. "They kept asking me,
`Where are the drugs?'" he recalls. "I told them they had the wrong guy."
The Drug Enforcement Agency's file on the case indicates that Ramirez gave
officers confused statements about both the money and his destination, and that
his extremely brief stay in a Missouri motel looked suspicious. What's more,
the drug dog "alerted" on parts of the car, indicating that drugs could have
been there at one time--which, since it was a rental car, may or may not have
anything to do with Rudy Ramirez.
Still, the search turned up no drugs of any kind, and the officers finally told
Ramirez that he was free to go--but not before confiscating $6,000 of his money
in the name of the federal war on drugs in a process known as "forfeiture."
Despite check stubs that he says prove that the money came from a car accident
settlement reached several months before, and bank records showing that it was
withdrawn from his account just prior to the Missouri trip, Ramirez has, to
this day, been unable to get his money returned. He shakes his head as he
describes it. "All I want is my money back," he says.
Last year, almost a billion dollars worth of cash, cars, boats, real estate,
and other property was forfeited to the federal government--most of it labeled
as drug-related. And while much of this property was taken from bona fide
criminals, critics of the nation's forfeiture laws say that too many innocent
people have fallen through the cracks in a system that, until recently, has
been far too heavily slanted in the government's favor.
Watch a special video report on small businessman Clay Waterman, who believes
he was an innocent victim of the forfeiture laws.
Retreat is rare in our nation's drug war--which makes recent roll-backs to the
forfeiture laws all the more remarkable. In their scramble not to appear "soft
on crime," lawmakers normally seem able only to get tougher, even amidst
widespread agreement that a policy is flawed.
But on August 23rd, 2000, after a difficult seven-year campaign by
Republican Congressman Henry Hyde from Illinois, the Civil Asset Forfeiture
Reform Act finally went into effect--making it more difficult for the federal
government to seize property without evidence of wrongdoing. It took a
remarkable coalition of conservative and liberal lawmakers, to change a law
that everyone from the American Civil Liberties Union to the National Rifle
Association has recognized as flawed. And while the reforms come too late to
help Rudy Ramirez, they will help to make cases like his rarer.
Law dictionaries define forfeiture as "loss of some right or property as a
penalty for some illegal act," and its role as a tool in the war on drugs is
clear: to hit drug dealers where it hurts most...in the wallet. The forfeiture
laws allow the government to seize property from people it believes to be
involved in drug-related activity, and then to use that revenue to bolster the
efforts of law enforcement. The concept is simple. If you use your car,
plane or boat to transport drugs, you will lose your car, plane or boat. And
if your cash was acquired through illegal drug sales, you will lose that cash
and anything bought with it.
Forfeitures, however, can fall into two categories--criminal or civil--and due
to some high-profile abuses, civil asset forfeiture has become extremely
controversial. Under criminal law, the government can seize property as
punishment only after its owner has been convicted of a crime, and our justice
system ensures that they are considered innocent until proven guilty. But
under civil law, it is the property itself--not the owner--that is charged with
involvement in a crime. What's more, that property is considered "guilty"
until proven innocent in court by its owner, thus turning our usual system of
justice on its head.
According to a report prepared for the Senate Judiciary Committee, at least 90
percent of the property that the federal government seeks to forfeit is pursued
through civil asset forfeiture. And although forfeiture is intended as
punishment for illegal activity, over 80% of the people whose property is
seized under civil law are never even charged with a crime according to one
study of over 500 federal cases by the Pittsburgh Press. For this
reason, critics say, the system can run roughshod over the rights of innocent
property owners--and fail to distinguish them from the guilty.
This potential for abuse is compounded by the strong financial incentive that
law enforcement has to make seizures--since they benefit directly from
forfeited property. It was the passage of the Comprehensive Crime Control Act
of 1984, part of the Reagan-era ramp-up in the war on drugs, that first made
this possible. At a federal level, the law established two new forfeiture
funds: one at the U.S. Department of Justice, which gets revenue from
forfeitures done by agencies like the Drug Enforcement Agency and the Federal
Bureau of Investigation, and another now run by the U.S. Treasury, which gets
revenue from agencies like Customs and the Coast Guard. These funds could now
be used for forfeiture-related expenses, payments to informants, prison
building, equipment purchase, and other general law enforcement purposes.
But equally important, local law enforcement would now get a piece of the pie.
Within the 1984 Act was a provision for so-called "equitable sharing", which
allows local law enforcement agencies to receive a portion of the net proceeds
of forfeitures they help make under federal law--and under current policy, that
can be up to 80%. Previously, seized assets had been handed over to the
federal government in their entirety.
Immediately following passage of the Act, federal forfeitures increased
dramatically. The amount of revenue deposited into the Department of Justice
Assets Forfeiture Fund, for example, soared from $27 million in 1985 to $644
million in 1991--a more than twenty-fold increase. And as forfeitures
increased, so did the amount of money flowing back to state and local law
enforcement through equitable sharing.
Some say that because of the resulting windfall, state and local law
enforcement has become as addicted to forfeiture as an addict is to
drugs--making property seizure no longer a means to an end, but an end in
itself. In 1999 alone, approximately $300 million of the $957 million that the
Treasury and Justice Department funds took in went back to the state and local
departments that helped with the seizures. And since 1986, the Department of
Justice's equitable sharing program has distributed over $2 billion in cash and
property. Additional revenue comes from forfeitures done under state law,
which adds to the total intake. According to a study by the Bureau of Justice
Statistics, state and local law enforcement reported receiving a total of over
$700 million in drug-related asset forfeiture revenue in 1997 alone--with some
departments single-handedly taking in several million dollars for their own
The potentially corrupting influence of this flow of cash is apparent from a
situation currently unfolding in the state of Missouri--where, in what has
become a highly controversial practice, mirrored across the country, police are
circumventing their own state law in order to continue reaping the financial
rewards of civil asset forfeiture.
In 1993, in response to some widely-publicized police abuses, the Missouri
State Legislature passed a sweeping reform of the state's civil asset
forfeiture laws. The new state law, one of the most stringent in the nation,
required that a property owner be convicted of a felony in court before
property related to that crime can be forfeited. What's more, the law required
all proceeds from the forfeitures to go to a state education fund--not back to
law enforcement. The reforms provided strong protection to innocent property
owners, making it much harder to forfeit property under Missouri law than under
federal law, and eliminated the police profit motive for making seizures.
In the face of these restrictions, however, Missouri's law enforcement has
implemented what critics call an elaborate shell game that allows it to
continue doing forfeitures under the laxer, federal laws--and to continue
receiving a share of the profits. The practice walks a very thin semantic
line, relying on the distinction between "discovering" and "seizing" cash.
Upon discovering cash during a traffic stop that they believe to be drug money,
for instance, a local policeman or Missouri Highway Patrol officer will not
actually attempt to "seize" it. Instead, they call a federal agent to the
scene to perform the seizure, virtually guaranteeing that the case will be
processed under federal law and that their department can receive a share of
the proceeds instead of sending those proceeds to the state education fund.
A 1999 report by Missouri State Auditor Claire McCaskill, in fact, found
that in spite of the reforms to Missouri state law, 85% of the money and
property seized on investigations involving Missouri law enforcement is still
handled under federal forfeiture laws. "Forfeiture is as American as apple
pie," says McCaskill, who strongly supports its use as a tool in the war on
drugs. "The problem is when law enforcement starts circumventing state law in
the process." Missouri's legislature has been considering reform bills that
could end the practice--an issue that will most likely be revived in the coming
session--and the Kansas City School District has filed a lawsuit against all of
Missouri's law enforcement.
Bob Boydston, the Sheriff of Clay County, Missouri, says that he has never had
to make a decision between using the state versus the federal system--and has
followed the state statutes since he took office in 1993. He can definitely
understand, however, why his colleagues opt for the federal system when faced
with the choice. "One system will ultimately mean that the proceeds leave the
agency, while the other returns some of the money to be used to fight illegal
drug dealing," he explains. "After law enforcement spends long, hard,
dangerous hours working a case, it seems natural to me that they make the
choice to go the federal route. It's depicted as some kind of sinister plot
and plan to circumvent statutes and keep money from the schools. That's not
the case at all."
Boydston's county of 15 towns and 180,000 people just north of Kansas City has
experienced the benefits of forfeiture proceeds first-hand. Assisting in just
one federal forfeiture, of which Clay County's share was $94,000, has allowed
the sheriff's department to train a drug dog, and maintain a military surplus
helicopter that it uses for surveillance work, highway pursuits, and support
for the efforts of the department's SWAT team. These are expenses that
Boydston says the department could never have afforded otherwise over the past
three years--but that are crucial to helping combat the county's extensive
Financial incentives aside, many of Missouri's law enforcement officers say
that they choose to process forfeitures under federal law for another reason as
well: while federal law gives them a fighting chance of taking the profits out
of drug dealing, state law does not. They feel strongly that, due to the
felony conviction requirement, the new state law allows too many drug dealers
to walk free, unpunished, with piles of cash, when there is not enough concrete
evidence to convict them of a drug-related felony.
But it is the laxer provisions of the federal law that, until recently, have
created enormous hardships for innocent people caught up in the system. Many
property owners have faced years of difficult and costly litigation before
winning back money, cars, homes and businesses that were never involved in a
crime. And others have never had their property returned at all. It is these
cases, tracked by groups like the American Civil Liberties Union and the
National Association of Criminal Defense Lawyers, and highlighted in
congressional hearings, that have fueled the drive for reform at a national
In many cases, people like Rudy Ramirez have been suspected of involvement in
drug trafficking for no more reason than its being "unusual" in this day and
age to possess a thick wad of cash. Take the example of Willie Jones, a
landscape architect who was carrying $9,600 through the Nashville airport on
his way to buy shrubbery. Or the case of physician Richard Lowe
who--distrustful of banks, and with vivid memories of the Great
Depression--stockpiled $317,000 in his home in Alabama before finally
depositing it in a bank, leading the government to confiscate a full $2.5
million of his life savings for this suspicious behavior.
Of particular importance to conservative lawmakers, small businesses have
suffered under these laws as well. In one well-publicized case, federal agents
sought to forfeit the Red Carpet Inn in Houston, Texas when, despite the hotel
staff's frequent contact with police, the local U.S. attorney said the owners
had "tacitly approved" of drug dealing on their property and not done enough to
prevent it. The hotel's owners were not charged with any crime, but had
rejected police "solutions" to the problem such as raising their room rates to
deter drug dealers from staying there.
Henry Hyde has called stories like these "Kafkaesque," and recalls that when he
first learned of the nation's civil forfeiture practices, he considered them
"more appropriate for the Soviet Union than the United States." What's more,
he's said, "People take their due process rights for granted...they have no
idea that these laws exist."
Critics agree that the main problem with the civil asset forfeiture laws,
before the recent reforms, was the low burden of proof required to seize
property. A seizure could be made on the basis of mere suspicion, known as
"probable cause", that the property was involved in a crime--and that is no
more evidence than is required to obtain a search warrant. No arrest, let
alone conviction, was needed. It was then up to the property owner to prove by
"a preponderance of the evidence", a more difficult standard to meet, that
their money, or car, or home, was not bought with drug money or used to commit
a drug-related crime, and should be returned.
Furthermore, the high cost of contesting a forfeiture often posed an
insurmountable problem, as it did for Rudy Ramirez. In order to take his case
to court, Ramirez would have had to post a "cost bond" of 10% of the value of
the property seized--and if he lost the case he would lose the bond. But for a
landscaping truck driver who is barely getting by, scraping together another
$600 was no minor hurdle. "I don't have money to be wasting," says Ramirez.
What's more, unlike a defendant in a criminal trial, Ramirez was not entitled
to a government-appointed attorney if he could not afford a private lawyer. He
would have had to hire the attorney at his own expense--and as Bruce Simon, a
Missouri lawyer to whom Ramirez went for help, explains, no lawyer in the
country would likely take that case.
"Generally speaking, it's not worth it unless you've had twenty-five to thirty
thousand dollars taken away," says Simon. It would have cost a minimum
of around $10,000 to take a case like Ramirez' to court, says Simon, so the
$6,000 he would have gotten back wouldn't even cover his lawyer's fees. As a
result of these blunt financial realities, Simon has seen many innocent owners
simply give up without a fight when faced with a system that provides "no
effective remedy" for them.
Eighty percent of forfeitures, in fact, go uncontested in court--a statistic
that the government feels suggests that the owners are guilty, and do not wish
to force the issue, but some others feel shows that the system is stacked too
heavily in the government's favor. According to a Justice Department source,
the average value of a DEA seizure in 1998 was around $25,000. And lawyers say
this confirms that many seizures are small enough to fall below the amount they
would consider worthwhile to contest.
In the absence of a court case, the only recourse left to someone like Rudy
Ramirez is to petition the DEA directly to return the money--a so-called
"administrative" solution. But Bruce Simon asks, how likely is the DEA to
believe that its agents have made a mistake? "That would mean the agency
passing judgement on itself," he explains, saying that most of those claims
"never get anywhere." According to the DEA's own estimates, in fact, only 3-5%
of such petitions are ever granted.
This bleak picture began to change in April of this year, however, when the
Civil Asset Forfeiture Reform Act was finally signed into federal law. The
success caps a nearly decade-long crusade, and is the result of cooperation
between some truly unlikely allies who, only by working together, could
overpower Congress' fear of looking "soft on crime". Henry Hyde, a
conservative Republican from Illinois and chairman of the House Judiciary
Committee, was joined by the House Judiciary Committee's ranking Democrat, John
Conyers of Michigan, to spearhead the effort--which united politicians as
diverse as outspoken conservative Bob Barr of Georgia with Democratic liberal
Barney Frank of Massachusetts. An equally impressive coalition formed in the
Senate around the issue.
Joining in support were organizations as wide-ranging as the American Civil
Liberties Union, the National Rifle Association, the American Bankers
Association, the National Association of Criminal Defense Lawyers, the United
States Chamber of Commerce, the Americans for Tax Reform, and organizations
representing groups like pilots, boaters and hotel owners.
The new law requires the government to have much stronger evidence of
wrongdoing before it can seize a person's property--raising the burden of proof
from "probable cause" to "a preponderance of the evidence" that the property is
linked to a crime. What's more, it shifts the burden of proof to the federal
government, meaning that the government must now prove in court that the
property was involved in crime...instead of the property owner needing to prove
Equally important for people like Rudy Ramirez, the new law removes many of the
onerous financial hurdles involved in contesting a forfeiture. It refunds
lawyers' fees to property owners who successfully challenge a seizure in court,
and in some cases provides government-paid lawyers to the indigent.
Furthermore, it eliminates the requirement that property owners post a
sometimes hefty bond before they can fight to get their property back.
The Justice Department and national law enforcement groups lobbied furiously to
prevent passage of the original bill put forward by Henry Hyde, concerned that
it jeopardized a key weapon in the war on drugs. Hyde's original version, in
fact, contained much stronger provisions--and sought to raise the burden of
proof on the government to "clear and convincing evidence" that the seized
property was criminally-linked.
Ray Dineen, Director of the Treasury Department's Forfeiture Fund, voiced
concerns early on about the potential weakening of a valuable law enforcement
tool. He says that the country must not forget the purpose of seizing cars,
offshore bank accounts, planes, boats, and other property that supports the
drug trade, which is to dismantle a criminal infrastructure that was illegally
acquired in the first place. He adds, "The fact that revenue generated by this
effort is subsequently used to support law enforcement initiatives is smart
policy--not a program of unchecked `taking.' We're not looking for money,
we're looking for the impact on criminal enterprises."
In the end, both the Department of Justice and the Department of the Treasury
have come out cautiously in favor of the final compromise legislation--saying
that raising the burden of proof needed to make a seizure is sensible
protection for innocent property owners. Still, they predict a loss of
revenue, and have concerns about the possibility of frivolous court cases being
brought by criminals under the new law.
Civil rights activists like the ACLU aren't entirely satisfied either, which
may be the sign of a good compromise. "We think this just begins to address
the problem," said Rachel King, legislative counsel of the ACLU, when the law
first passed. "The situation is so bad that even modest reforms are important."
Make no mistake about it, the recent reforms do not address the issue that many
feel is central to most abuses of civil asset forfeiture: the financial
incentive for law enforcement to make seizures. Still, the new law will help
ensure that legitimate use of a powerful tool in the war on drugs violates the
rights of fewer innocent people.
"This bill is one we can all be proud of," Henry Hyde said of the final
version. "It returns civil asset forfeiture to the ranks of respected law
enforcement tools that can be used without risk to the civil liberties and
property rights of American citizens. We are all better off that this is so."
And in the war on drugs, that is a bold step forward--and a kind of reform that
is all too rare.
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