[Senate Hearing 114-833]
[From the U.S. Government Publishing Office]
S. Hrg. 114-833
THE NEED TO REFORM ASSET FORFEITURE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
APRIL 15, 2015
__________
Serial No. J-114-11
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
U.S. GOVERNMENT PUBLISHING OFFICE
47-423 PDF WASHINGTON : 2023
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont,
JEFF SESSIONS, Alabama Ranking Member
LINDSEY O. GRAHAM, South Carolina DIANNE FEINSTEIN, California
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah RICHARD J. DURBIN, Illinois
TED CRUZ, Texas SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana AL FRANKEN, Minnesota
DAVID PERDUE, Georgia CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
Kolan L. Davis, Chief Counsel and Staff Director
Kristine Lucius, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
APRIL 15, 2015, 10:06 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
WITNESSES
Witness List..................................................... 31
Bach, Jonathan, Cooley LLP, New York, New York................... 12
prepared statement........................................... 32
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, DC................................................. 10
prepared statement........................................... 42
Caswell, Russ, Tewksbury, Massachusetts.......................... 9
prepared statement........................................... 49
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky....... 5
prepared statement........................................... 52
Sheth, Darpana, Attorney, Institute for Justice, Arlington,
Virginia....................................................... 7
prepared statement........................................... 56
QUESTIONS
Questions submitted to Jonathan Bach by:
Senator Grassley............................................. 129
Senator Vitter............................................... 132
Questions submitted to Chuck Canterbury by:
Senator Grassley............................................. 129
Senator Klobuchar............................................ 131
Senator Vitter............................................... 133
Questions submitted to Russ Caswell by Senator Vitter............ 135
Questions submitted to Darpana Sheth by:
Senator Grassley............................................. 129
Senator Vitter............................................... 134
ANSWERS
Responses of Jonathan Bach to questions submitted by:
Senator Grassley............................................. 136
Senator Vitter............................................... 139
Responses of Chuck Canterbury to questions submitted by:
Senator Grassley............................................. 140
Senator Klobuchar............................................ 142
Senator Vitter............................................... 143
Responses of Russ Caswell to questions submitted by Senator
Vitter......................................................... 153
Responses of Darpana Sheth to questions submitted by:
Senator Grassley............................................. 144
Senator Vitter............................................... 151
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Submitted by Senator Grassley:
American Civil Liberties Union (ACLU), Washington, DC, et
al., organizations representing the interests of criminal
justice reform, civil and human rights, faith, business,
and community, April 14, 2015, letter...................... 158
American Civil Liberties Union (ACLU), Washington, DC, April
15, 2015, letter........................................... 155
Drug Policy Alliance, Washington, DC, April 22, 2015, letter. 162
Leadership Conference on Civil and Human Rights, The,
Washington, DC, April 15, 2015, letter..................... 165
Submitted by Senator Sessions:
Collier, Spencer, Secretary of Law Enforcement, Alabama Law
Enforcement Agency (ALEA), State of Alabama, Montgomery,
Alabama, April 15, 2015, letter............................ 168
Major Cities Chiefs Association (MCCA), et al., law
enforcement agencies and associations, statement........... 169
ADDITIONAL SUBMISSION FOR THE RECORD
Submission for the record not printed due to voluminous nature,
previously printed by the Federal Government, or other criteria
determined by the Committee:
American Civil Liberties Union (ACLU), New York, New York,
``In for
a Penny: The Rise of America's New Debtors' Prisons,''
October 2010,
report, https://www.aclu.org/files/assets/InForAPenny_web.pdf
THE NEED TO REFORM
ASSET FORFEITURE
----------
WEDNESDAY, APRIL 15, 2015
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 226, Dirksen Senate Office Building, Hon. Charles E.
Grassley, Chairman of the Committee, presiding.
Present: Senators Grassley, Sessions, Lee, Flake, Perdue,
Tillis, Leahy, and Klobuchar.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Chairman Grassley. Thanks to everybody for their
attendance.
Today the Senate Judiciary Committee will hold a hearing on
the need for asset forfeiture reform. The issue is as old as
the Constitution. As Madison remarked in Federalist 51, in
framing a government which is to be administered by man over
man, the great difficulty lies in this: You must first enable
the government to control the governed and, in the next place,
oblige it, meaning the government, to control itself.
Law enforcement is a principal means by which government is
enabled to control the governed. Civil asset forfeiture is an
important and valuable tool for law enforcement to seize
property associated with criminal activity.
Civil asset forfeiture allows the Government to seize and
forfeit foreign-owned boats and planes that were used to
smuggle drugs. It can be used to seize assets controlled by
entities tied to foreign terrorist organizations, and it can be
used to forfeit the property of a defendant who dies before
conviction might occur.
The property that the Government obtains through civil
asset forfeiture can be used to compensate victims and
otherwise deprive criminal organizations of funding. So, then
we all recognize the value of civil asset forfeiture.
Even in the midst of the current reform effort, no bill
before Congress would abolish civil asset forfeiture and I
would not support one if it were before the Congress. But as
asset forfeiture is currently practiced, nothing is obliging
the Government to control itself. Just the opposite. Civil
asset forfeiture leads government to exceed its just powers
over the governed. It encourages law enforcement to take
shortcuts rather than prosecute or even arrest. Civil asset
forfeiture enables government and law enforcement to seize
property without any proof of wrongdoing, and the process
creates perverse incentives.
Under adoption and equitable sharing, State and local law
enforcement can seize property and ask the Federal Government
to adopt the seizure as if it had been carried out by Federal
officials.
If this occurs, the State or locality receives 80 percent
of the value of the very property that they arrange to have
forfeited. This incentivizes police to seize particular
property to obtain a direct financial reward.
When this occurs without pursuing criminal conviction or
even an arrest, the chances rise that the rights of innocent
people will be violated.
A number of immediate reports have set forth a wide range
of instances in which individual rights have been infringed,
especially in cases like traffic stops or in structuring cases,
such as that of one of my constituents, Carole Hinders, from
Iowa. Some of the extensive reporting was done by the Des
Moines Register and the process of contesting forfeiture, as it
currently operates, is a trap to the unwary.
In 2000 Congress passed the Civil Asset Forfeiture Reform
Act. It made some improvements for innocent owners and in
establishing timeframes. But the most important procedural
reforms were gutted at the behest of law enforcement. So, the
abuses that existed in 2000 have grown. Iowans have raised
their concerns about asset forfeiture with me. It is past time
to take action to address it.
The Justice Department has issued policy guidance that it
believes will end equitable sharing and eliminate forfeiture in
structuring cases where there is no evidence of any other
underlying crime.
The Department of Justice is mistaken. Their policies still
have loopholes. Its policy would allow equitable sharing for
joint task forces. It contains a so-called public policy
exception for guns, ammunition, and child pornography.
So, I disagree. When law enforcement encounters a crime, it
should make an arrest and begin prosecution. It is unacceptable
for the Federal Government to seize and forfeit a gun as the
Justice Department would allow not only without a conviction,
not only without a prosecution, but not even with an arrest.
And the Justice Department's structuring policy would
supposedly prohibit civil asset forfeiture when there is
evidence only of structuring. It allows agents to presume there
is another underlying crime when they cannot find evidence that
there is not one.
I have been disappointed with law enforcement's response to
the call for reform. The Justice Department was invited to
testify today, but they declined, claiming they could not be
ready in time. But just 2 months ago, they were ready and they
were able to testify on this very same subject before the other
body. But they demonstrated then that they were out of touch
and unprepared for legislative reform.
I am also troubled that the Fraternal Order of Police's
written statement similarly dismisses the need for real reform
and demonstrates the absurdity of a system of justice in which
some law enforcement appears to value funding their own
operations over protecting civil rights.
No one in law enforcement has offered a constructive
legislative alternative and I hope to work with them to change
that environment because legislation is necessary.
It is necessary to end equitable sharing and its perverse
incentives to provide due process to individuals whose assets
have been taken to strengthen the burden of proof, to codify
the IRS' new structuring policy, and to overturn a Supreme
Court decision on criminal asset forfeiture.
A group of bipartisan, bicameral legislators is working to
develop a bill to reform asset forfeiture. But we should do so
while recognizing the value of civil asset forfeiture and we
should continue to allow proceeds to flow to law enforcement so
long as there is no direct connection between any particular
asset that is seized and the agency that seizes the asset.
It is that dynamic that inherently makes the process flawed
and that makes the Government unable to control itself to the
detriment of the liberties of the American citizen.
Beyond legislation, there are problems with the
administration's asset forfeiture. Time and again I have
received reports of agencies at all levels of Government
spending asset forfeiture money at whims and with very little
oversight.
In the recent week, I heard from whistleblowers who allege
that the asset forfeiture division of the U.S. Marshal's office
is spending that money on lavish office furnishings and
facilities, like a $22,000 conference table and a $1.8 million
training facility that lies unused nearly 11 months of the
year.
Whistleblowers also allege that asset forfeiture division
resources have been used selectively to reward friends of
senior management with agency jobs and lucrative contracting
positions.
So, this is a cavalier spending of money and it indicates
that it is out of control.
At this point, I would ask unanimous consent to introduce
into the record three letters. The first is a letter from the
ACLU in support of bipartisan, bicameral asset reform; the
second is from the Leadership Conference on Civil and Human
Rights supporting reform of civil asset laws; the third is a
letter from 24 organizations outlining a statement of
principles for achieving effective Federal forfeiture reform.
Senator Leahy. No objection.
Chairman Grassley. Thank you.
[The information appears as submissions for the record.]
Chairman Grassley. Those organizations include the American
Conservative Union and their foundation, Americans for Tax
Reform, the NAACP, the National LGBTQ Task Force Action Fund--
that letter asks us to take such action as to eliminate
equitable sharing and advance due process in forfeiture
proceedings.
The Committee is fortunate to have knowledgeable witnesses
today and I look forward to their testimony.
And now, it is time for my friend, Senator Leahy, to speak.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
Asset forfeiture is a powerful tool for law enforcement. It
does allow the Government to seize the proceeds of crime or
property that was used in the commission of a crime.
Every day we know that law enforcement officers use
forfeiture to seize property associated with child pornography,
cars, and large quantities of cash of major drug traffickers,
the bank accounts of those that defraud and steal from innocent
victims in the U.S. and around the world.
When used appropriately, the tool deprives criminals of
their profits. It deters crime. Through its civil asset
forfeiture program, the Justice Department has returned
billions of dollars to crime victims. It has put billions more
to good use by supporting our Nation's crime fighting efforts,
including a number of what I feel are very innovative public
safety initiatives.
But the program has needed significant oversight and
improvements along the way. Fifteen years ago, the asset
forfeiture system was in need of repair. Innocent property
owners were not being afforded adequate due process before
their property was forfeited. They were forced to--they had to
do this perfectly--navigate a bureaucratic labyrinth just to
liberate property that should have been presumptively theirs in
the first place.
I cosponsored bipartisan Senate legislation that sought to
restore real due process rights for property owners and help
pave the way for reform and Congress eventually came together
to enact basic safeguards for property owners. We passed the
Civil Asset Forfeiture Reform Act.
But despite these reforms, it is clear that some abuses
persist. We have all seen the troubling reports, roadside stops
that resemble shakedowns, seizures of bank accounts when there
is no criminal conduct other than the owner's deposit history.
And just a look at a story about a dairy farm in today's paper
will explain that.
In fact, there seems to be no reaction on the part of the
authorities to what has happened. Allegations of policing for
profit; reports of forfeiture funds devolved into slush funds,
something the Chairman referred to.
I expect we are going to hear these concerns today. Now, I
want to think these practices may not be the norm, but the fact
that they occur at all, that is a problem. Asset forfeiture can
be a powerful crime fighting tool. I think we should know that.
But Congress never intended it to be a mere fundraising tool,
certainly not in my State and I suspect not in any other State.
The Justice Department is conducting comprehensive review
of its asset forfeiture program and doing this with an eye
toward reform. Attorney General Holder has already limited the
types of seizures the Federal Government will adopt from local
law enforcement.
Attorney General Holder also limited the circumstances in
which it will seize assets based on the crime of structuring.
I understand more changes are imminent and I am very
anxious to see them. I think we will give them full
consideration.
Seizing and forfeiting the tools used by criminals is an
effective means to combat crime. But--but--and this is the
major part--innocent Americans deserve protections from abusive
asset forfeiture practices.
So, I believe more reform is needed. I will work with
Chairman Grassley and the Justice Department and State and
local law enforcement and others to identify flaws with our
asset forfeiture program. It is something we all have to be
involved with, at the Congress level, at the national level in
law enforcement, the State level, and local level.
I hope we can come together on a basis to fix what is
broken. We should be able to get a bipartisan fix, which means
one that would actually pass, and ensure this important law
enforcement tool remains consistent with our fundamental
notions of due process, fair play, and constitutional
protections.
Thank you, Mr. Chairman. I apologize for the voice.
Chairman Grassley. Thank you, Senator Leahy.
Would Senator Paul come forward, please? And before you
speak, I want to compliment you on being involved with this
issue as a leader, as well, and, more importantly, to say that
you have brought to the attention of the Congress and the
Nation a lot of issues or a lot of organizations that we do not
communicate with a lot. So, I want to compliment you beyond
just this bill.
Would you proceed, please.
STATEMENT OF HON. RAND PAUL,
A U.S. SENATOR FROM THE STATE OF KENTUCKY
Senator Paul. Thank you, Mr. Chairman and Ranking Member
Leahy and Members of the Committee, for allowing me to testify
today on civil forfeiture reform.
This Committee has an opportunity to end an injustice, an
injustice that disproportionately affects minorities and the
poor, by reforming our civil asset forfeiture laws.
According to The Washington Post review of seizures done
under Federal seizure laws, the majority of those who have had
their property taken were Black, Hispanic, or other minority.
These laws were originally intended to disrupt criminal
networks, but they have increasingly been used against innocent
citizens to strip them of their property without a lawyer to
defend their rights, without a day in court to hear the charges
against them, and without due process.
Civil forfeiture turns justice on its head. Our current
laws presume you are guilty until you can prove your innocence.
This is directly in contradiction to what we should stand for
as a republic.
Last year, in Philadelphia, Christos Sourovelis watched his
son get arrested for selling $40 worth of illegal drugs outside
of his home. A month later, the police were back, but not for
the son--for the house. The Philadelphia District Attorney
dropped the case after much scrutiny, but you can see where the
potential for abuse lies.
Not all victims are so lucky. There have been over 60,000
cash seizures made on highways since 2001, without search
warrants, without indictments, and without convictions,
totaling more than $2.5 billion. These seizures were done
through the equitable sharing program. This program provides a
perverse incentive that encourages government to confiscate
property because government officials get to keep up to 80
percent of the proceeds.
Mandrel Stuart is just one of the people that had his money
seized as a part of this program. He owned a barbecue
restaurant called Smoking Roosters in Staunton, Virginia. He
was stopped for a minor traffic offense and as the police were
going through, they decided that they would confiscate the
money he had on hand that he was going to use for supplies to
buy for his restaurant.
They found no evidence of wrongdoing. He was never charged
with a crime, but they still took his money. The prosecutor
told him that they could have half his money if he accepted a
plea. Mr. Stewart refused and fought for over a year, but by
then he had lost his business. He eventually got his money back
and was never charged.
We have a big discussion now on who will be our next
Attorney General. Loretta Lynch became famous for her herculean
confiscation of private property. She seized over $100 million
in forfeited funds during her time as U.S. Attorney and then
skirted the reforms that were put in place 15 years ago to
protect the innocent by not filing the paperwork that would
have allowed those reforms to kick in.
Lynch confiscated nearly $1 million--nearly $0.5 million
from the Hirsch brothers who owned a family owned business in
New York and held the money for nearly 2 years. The Hirsch
brothers were never charged with a crime, much less convicted.
Yet, it took years and hundreds of thousands of dollars to get
their money back. When questioned about civil forfeiture,
Loretta Lynch seemed to be unconcerned with the need for
reform.
I think no one who listens to these horrendous abuses of
our civil liberties should be not moved to think that we really
do need reform in our country. So, last year I introduced the
Fifth Amendment Integrity Restoration Act, the FAIR Act, with
Senators Lee and King. This has also been introduced in the
House.
Our bill would end equitable sharing and ensure that State
laws are being respected and not circumvented. It will raise
the burden of proof in civil forfeiture cases. Our bill would
ensure that Government will provide you representation if they
take your property. The bill would also place the burden of
proof where it belongs--on the Government, not the accused. It
would require a conviction before property is forfeited.
Many people have mentioned that the money can be used for
victims. I have no problem with that if you are convicted of a
crime. But in America, they should not take your stuff without
a conviction. Most importantly, it will end the profit
incentive by requiring all forfeiture assets to be deposited in
the Treasury instead of a fund to be used by the agencies that
seize the property.
This act is bipartisan and bicameral and has support from
the Institute for Justice, the ACLU, the National Association
of Criminal Defense Lawyers, Americans for Tax Reform.
My hope is as the Committee moves forward, that you will
use some of our ideas or include some of our ideas in your
deliberation. I think Americans from all walks of life are
ready for criminal justice reform and I hope this is the year
we get it done.
Thank you.
[The prepared statement of Senator Paul appears as a
submission for the record.]
Chairman Grassley. Thank you, Senator Paul.
I do not have any questions. Do any of my colleagues have
questions of our colleague?
Senator Leahy. I know he has a tough schedule.
Chairman Grassley. Thank you very much, Senator Paul.
Senator Paul. Thank you.
Chairman Grassley. Now, I will call our next group of
witnesses. We have one panel. Darpana Sheth, an attorney with
the Institute for Justice. Come while I am reading, please.
Her practice includes litigation to protect private rights,
including asset forfeiture cases. She is a graduate of the
University of Pennsylvania. She obtained her law degree from
Georgetown University Law School.
The next person is Russ Caswell. He is the former owner of
the Motel Caswell, Tewksbury, Massachusetts. The Motel Caswell,
which had been in the family since the 1950s, became the
subject of a Federal forfeiture action. The action was resolved
in 2013 with the assistance of the Institute of Justice.
Chuck Canterbury has been the National President of the
Fraternal Order of Police since 2003. Mr. Canterbury began his
policing career in 1978, Horry County Police Department,
Conway, South Carolina, serves on a number of important boards,
and is treasurer of the International Council of Police
Representative Associations. Mr. Canterbury received his BA
degree from Coastal Carolina University.
Jonathan Bach is a lawyer with Cooley in New York. He is
testifying on behalf of the New York Council of Defense
Lawyers. Mr. Bach filed an amicus brief in the recent Supreme
Court case, Kaley v. United States. The Supreme Court discussed
the brief in its decision.
Mr. Bach is a member of the American College of Trial
Lawyers and a graduate of Yale Law School.
We will go in the order that you were introduced. So, Ms.
Sheth, will you start out?
STATEMENT OF DARPANA SHETH, ATTORNEY,
INSTITUTE FOR JUSTICE, ARLINGTON, VIRGINIA
Ms. Sheth. Good morning, Chairman Grassley, Senator Leahy,
and distinguished Members of the Committee. Thank you for
inviting me to testify about the urgent need to reform our
Federal forfeiture laws.
Because of the overwhelming recognition across the
political spectrum on the need to reform these laws, I will
focus my remarks on two key defects that Congress must address;
first, the self-financing of law enforcement agencies, which
inherently distorts law enforcement priorities; and, second,
the inadequate protection afforded to property owners.
Current Federal law incentivizes forfeiture by allowing law
enforcement agencies to keep 100 percent of the proceeds. Even
with the 2000 CAFRA reforms, Justice Department forfeitures
have skyrocketed to $4.4 billion last year, while Treasury
Department forfeitures have soared to $1.6 billion in 2013.
Any legislation that fails to remove this direct financial
incentive will be ineffective in the long run.
Directing forfeiture proceeds back to the very agencies
responsible for forfeiture is antithetical to our American
constitutional system in three ways. First, the self-funding of
executive branch agencies violates the separation of powers.
The Constitution gives Congress, the most representative branch
of Government, the branch of Government closest to the people,
the power of the purse. It is past time for Congress to reclaim
this power as an important check on the executive branch.
Second, it violates principles of federalism. Under the
equitable sharing program, State and local law enforcement can
bypass their own State forfeiture laws in favor of more lax
Federal rules and then receive up to 80 percent of forfeiture
proceeds.
The DOJ's new policy does not cure this problem because of
three major loopholes. It only prohibits adoptive seizures and
even then carves out an exception for public safety. It only
provides vague standards of what constitutes sufficient Federal
involvement for joint investigation seizures. And it does not
apply if a Federal warrant is obtained after the seizure. And
this policy could be reversed at any time with the stroke of a
pen.
Third, giving law enforcement a direct financial interest
in the seizure of property violates a central command of due
process. The administration of justice must be impartial. This
lack of impartiality is best seen in the fact that almost two-
thirds of all Federal forfeitures are administrative, meaning
that the process is conducted by the seizing agency itself
without any judicial involvement.
But even when courts are involved in civil forfeitures,
there are inadequate procedures to protect property owners. My
written testimony details these gaps, including the lack of
counsel, the low burden of proof on the Government, and the
absence of a prompt opportunity to contest the seizure of
currency. But I also wanted to highlight how the process turns
the presumption of innocence on its head. In administrative
proceedings, the forfeiture is presumed valid and the property
owner must make the case for its return. Even in judicial civil
forfeiture proceedings, property owners are presumed guilty
until they prove their innocence.
Once the Government shows that the property is more likely
than not connected to a crime, the burden shifts to property
owners to affirmatively prove that they did not know of illegal
activity. The absence of adequate process, married to the
perverse financial incentives, has led to widespread abuse,
with a disproportionate impact on minorities and lower income
individuals.
Civil forfeiture has treated countless ordinary Americans,
like Russ Caswell, worse than criminals. Since 2011, civil
forfeiture has resulted in more than 61,000 currency seizures
totaling $2.5 billion through so-called highway interdiction,
all without any search warrants or indictments. And the IRS has
abused forfeiture to seize almost a quarter of a billion
dollars from more than 2,500 individuals and small business
owners under an aggressive and misguided interpretation of
banking laws. In most of these cases, like Carole Hinders of
Spirit Lake, Iowa, there was no claim of any criminal activity
besides a series of cash transactions under $10,000.
This is not about bad apples in law enforcement. This is
about fundamentally flawed incentives in the law. The solution
is not to better police the police through temporary policy
changes made by agencies. The solution is to end policies that
distort agency incentives by changing the law.
Thank you for your time.
[The prepared statement of Ms. Sheth appears as a
submission for the record.]
Chairman Grassley. Thank you for being so on time, as well.
Mr. Caswell.
STATEMENT OF RUSS CASWELL,
TEWKSBURY, MASSACHUSETTS
Mr. Caswell. Thank you, Chairman Grassley, Ranking Member
Leahy, and Members of the Committee, for the opportunity to
share my story and testify about the dire need for asset
forfeiture reform laws.
I was the owner of Motel Caswell in Tewksbury, Mass. My
father built the motel in 1955. Since taking over from my
father in 1984, I have strived to make Motel Caswell an
affordable, safe place.
I installed cameras, kept a do-not-rent list at the front
desk, regularly checked IDs and license plates, and kept the
property well lit. We always cooperated with police. I have
even given free rooms to them so they can hold stakeouts and
arrest any bad guys that may find their way onto my property
without my knowledge.
Unfortunately, none of this would matter when the Federal
agents came knocking in September 2009. Just as my wife and I
had begun looking forward to a hard-earned retirement, our
world was turned upside down.
We received notice that the motel was being subject to
civil forfeiture. At that time, I had no idea what that was or
how exactly my motel was being sued and I was not.
So began my journey into the strange world of civil
forfeiture, where I was now being asked to prove the innocence
of my property in crimes that I had nothing to do with.
The Tewksbury Police Department, working with the U.S.
Attorney's Office, claimed that our motel facilitated drug
activity and there was a substantial connection between the
motel and the drug activity. This came after years with working
with law enforcement officials to prevent and report crime on
our property.
Over the course of 20 years, we rented out more than
125,000 rooms to guests. The Government's lawsuit identified 15
arrests over that period as a basis for the forfeiture, 15
arrests out of 125 rooms rented. That averages to less than one
per year--one arrest per year.
I have never been charged with or convicted of a crime in
my entire life. No one in my family or any of our employees has
ever been involved in any of those crimes at the motel.
The next few years could only be described as a living
nightmare brought to us courtesy of the U.S. Government.
Immediately, the lawsuit began to drive customers away and our
long-term tenants were worried about where they may go to live.
The Tewksbury police and the U.S. Attorney's Office thought
this would be an easy target because we are a mom-and-pop
business and not some big corporation, like Motel 6 or Walmart,
which had similar crimes on their property.
I also believe our commercially zoned property with no
mortgage put a bull's eye on our backs in their eyes. After
borrowing $60,000 to fight the forfeiture action, I was at my
financial and wit's end. My wife was not in good health and
watching our retirement dream slip away began to take its toll.
It was at that time the Institute for Justice offered to
take the case pro bono. It is because of IJ that I am able to
say this story has a happy ending, unlike most others.
After a 4-day trial in Federal court, we finally, in
January 2013, received the news that we had won. The judge
agreed that we were innocent owners and that the Government's
case had no legs to stand on.
Unfortunately, not everyone can have lawyers willing to
represent them free of charge. Too many Americans are being
swept up by civil forfeiture with no means to defend
themselves.
I am here today not only to share my story, but to urge you
to make real changes to the law to make sure this can never
happen again. As my case shows, when there is profit incentive
for the agencies doing the forfeiture, justice is hard to find.
This profit incentive must end.
In addition, civil forfeiture turns the American
presumption of innocence on its head. Criminals are presumed
innocent until proven guilty and the Government must prove
beyond a reasonable doubt that they are guilty. But under civil
forfeiture, I had to prove I was innocent. Our forfeiture laws
are unjust, un-American, and Congress has the power to prevent
these abuses from continuing.
I urge this Committee to address the serious flaws in this
current law.
Thank you again for the opportunity to testify.
[The prepared statement of Mr. Caswell appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Caswell.
Now, Mr. Canterbury.
STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, FRATERNAL
ORDER OF POLICE, WASHINGTON, DC
Mr. Canterbury. Good morning, Mr. Chairman, Senator Leahy,
other Members of the Committee.
First, let me say thank you to this Committee for the
passage of two very important pieces of legislation to the
floor: the reauthorization of bulletproof vest program and the
Blue Alert bill. We want to thank you, Chairman Grassley, for
moving that bill; those two bills mean a lot to the Fraternal
Order of Police and we thank this Committee for that action.
The FOP does not disagree that there is a need for civil
asset forfeiture revision. We have been in regular
communications with the Justice Department regarding their
changes to the program, which were announced by Attorney
General Holder in January.
It is not a new issue for us and we are pleased that the
Chairman's staff reached out to us to share his draft
legislation.
Many of the provisions in the draft bill which would create
greater accountability, transparency and oversight of the asset
forfeiture program are good ones which the FOP will ultimately
support.
We are concerned, however, that the reduced timeframes for
civil asset forfeiture proceedings and expansion of relief
provisions may overburden the existing system, and we are
looking for reassurance that that will not happen.
The draft legislation also proposes changes to the burden
of proof to a much higher standard. The FOP would like to work
with you, Senator Grassley, on this standard so that we could
come with a standard that we all agree is reasonable.
However, our foremost concern in this draft bill proposes
the end to the equitable sharing program for State and local
law enforcement. Federal law enforcement agencies would be able
to continue to seize property, but would be prohibited from
sharing any of the assets with local and State agencies, even
if they were part of the task force which carried out the
seizure.
As you know, local law enforcement outnumbers Federal law
enforcement 8-to-1. The equitable sharing programs are of great
value to law enforcement and to public safety and the
communities in which these funds are shared.
Like any government program, there can be found instances
of abuse and the FOP supports measures to combat such abuses
and to improve the integrity of the program. However, to end a
decades-long program with documented success in deterring and
fighting crime without careful consideration is simply not
sound public policy.
We have been assured that the aim of this reform
legislation is not to penalize law enforcement or reduce their
access to resources. The draft bill does provide a percentage
of the asset forfeiture funds for the Edward Byrne Memorial
Justice Assistance Grant, as well as $200 million to joint
local law enforcement operation programs to encourage State and
local agencies to continue working on these task forces.
However, there is no guarantee that appropriators will not
use these funds to replace the existing funds. In our view, the
ending of the equitable sharing program will result in yet
another reduction in Federal assistance to State and local law
enforcement.
Loss of these funds will greatly reduce the ability of
State and local agencies to participate in joint operations.
The changes announced earlier this year by the Justice
Department did represent significant reform. In the view of the
FOP, it makes more sense to allow these reforms time to work
and evaluate their impact before we consider ending the entire
program.
I would also like to ask that the Members of the Committee
consider the interim report from the President's Task Force on
21st Century Policing. It contains 29 individual
recommendations and a large number of those call for new or
additional Federal funds for State and local law enforcement,
but not one of those recommendations recommended changes in the
civil asset forfeiture program.
Now, I understand this was not a comprehensive report and
they only had 90 days in which to present these suggestions,
but at no time did anyone on that committee recommend changing
this program.
We can be sure of only one thing. If the draft bill is
enacted as written, there will be even fewer resources
available to State and local law enforcement and fewer State
and local law enforcement agencies will be able to participate
in Federal task forces to combat regional and organized
criminal threats, including domestic and foreign terrorism.
Mr. Chairman, in conclusion, the FOP is ready to work with
the Committee on this asset forfeiture reform. There are many
areas which we believe there may be broad agreement--preventing
abuse, increased transparency, and improved due process. Nobody
takes a backseat on due process more and nobody believes in due
process any more than the Fraternal Order of Police. Excuse me,
Mr. Chairman.
But in the end, ending the equitable sharing program
completely, without measuring the impact of recent reforms, is
simply not the way to do this.
We thank you for having us here today and we commit to
working with this Committee to come up with equitable sharing
programs that are not based on lack of due process.
[The prepared statement of Mr. Canterbury appears as a
submission for the record.]
Chairman Grassley. Thank you, Mr. Canterbury.
Now, Mr. Bach.
STATEMENT OF JONATHAN BACH, COOLEY LLP,
NEW YORK, NEW YORK
Mr. Bach. Chairman Grassley, Senator Leahy, distinguished
Members of this Committee, thank you very much for inviting me
today.
Under our current laws, the Government has a right to
freeze and restrain a criminal defendant's assets at the very
beginning of a case when it believes those assets are fruits or
instrumentalities of a crime.
These restraints serve the Government's interest in
preserving property for restitution of victims and other law
enforcement purposes. But because they restrain funds, they
often make it impossible for the individual accused of a crime
to hire the lawyer that he or she wishes to have represent them
in the ongoing criminal case.
I am not here today to raise any question about the
Government's right to restrain assets. I am here to question
whether such restraints can be imposed without permitting the
individual accused of a crime an opportunity to be heard on the
question of whether such restraints are valid and justifiable
in his or her particular case.
Our current law limits the ability of individuals accused
of a crime to obtain a meaningful hearing on this very
important issue. Our current law also limits the ability of
judges and courts to review the propriety of such restraints in
individual cases.
The Supreme Court, in a recent case of Kaley v. United
States, declined to find that a criminal defendant has a right
to a hearing to challenge asset restraints other than a hearing
on the limited question of whether the particular assets under
restraint can be traced back to the crimes charged.
Over the past 25 years, courts in the Second Circuit, where
I practice, have granted individuals whose assets have been
restrained far broader hearing rights. The experience in the
Second Circuit has shown that relatively broad pretrial hearing
rights can be meaningfully accommodated within the judicial
system without resulting in overload of court dockets or other
abuse of the system.
Throughout the quarter of a century during which the Second
Circuit has recognized a broad hearing right, there have been
fewer than 30 reported cases at the district court level in
which defendants have challenged pretrial asset restraints.
One explanation for this low number is that defense
attorneys representing clients with restrained assets and,
thus, with limited, if any, ability to pay attorney's fees, are
unlikely to devote the time and effort needed to pursue a
hearing unless they believe there is a genuine possibility that
they will prevail. In other words, they refrain from seeking
such hearings where the Government can easily make its case.
A separate reason for the infrequency of these hearings is
that district courts have required defendants seeking a hearing
to first establish that, in fact, they have a genuine need for
the restrained funds to hire the lawyer of their choice.
District courts have also allowed the Government to proceed
at these hearings by presenting only a single witness,
typically the law enforcement agent assigned to the case who
summarizes the anticipated testimony of other witnesses in
hearsay form. That mechanism has also helped courts limit the
scope of these hearings and keep them within meaningful limits.
Recognition of a criminal defendant's right to a pretrial
hearing in the Second Circuit has also had the beneficial
result of encouraging lawyers to reach resolution by mutual
agreement, often making any hearing unnecessary.
A hearing limited solely to the question of whether the
assets under restraint can be traced back to the crime charged
serves little or no purpose in many cases where there is no
dispute that the defendant engaged in the conduct in issue, but
only a dispute as to whether the conduct constitutes a crime.
Many defendants admit conduct, but contend that they did
not have the requisite state of mind to make it a crime. Other
defendants admit conduct, but argue that the prosecution is
barred by the statute of limitations. Still other defendants
admit conduct, but contend that the criminal statute under
which they were charged is too vague to put them on notice that
their conduct was a crime.
Many cases in which conduct is conceded, but the defense
turns on a different legal concept or principal, often present
the greatest need for skilled and experienced lawyers capable
of presenting the nuances of such arguments.
It is, therefore, critical that defendants with apparently
strong arguments to make on such grounds not be stripped of
their assets or deprived of counsel of their choice.
Chairman Grassley, others, thank you very much for inviting
me to testify here today.
[The prepared statement of Mr. Bach appears as a submission
for the record.]
Chairman Grassley. I thank all of our witnesses. I am going
to start with questions, and then Senator Leahy.
Mr. Canterbury, I am going to give a commentary on your
testimony. Before I do that, though, at the end of the
commentary, I was going to ask you this question that I think
you have answered in your testimony twice. But maybe after my
commentary, you will want to say more.
The question was are you willing to engage in constructive
efforts to develop legislation that would fix the problems and
that you could support. I think you said twice in your
testimony that you would do that.
Mr. Canterbury. Absolutely, Chairman Grassley.
Chairman Grassley. This is a commentary I have on your
testimony.
Asset seizure abuses are not anecdotes. They have formed
the basis for successful lawsuits and they are inherent in
perverse incentives of equitable sharing.
I think most Americans would be offended by the suggestion
that if equitable sharing funding is not replaced dollar-for-
dollar, quote, ``fewer State and local law enforcement agencies
will be able to participate in Federal task forces to combat
regional organized criminal threats, including domestic and
foreign terrorist threats,'' end of quote.
The people rightfully expect that police officers will
always and unconditionally protect them from organized crime
and terrorism, period, and they expect that all police officers
would value their civil rights more than Federal funding.
I expect that law enforcement would be able to successfully
seek replacement funding if equitable sharing were eliminated,
unless perhaps these were the kinds of arguments being
advocated.
Equitable sharing allows police to end-run the requirements
that States have enacted to protect their citizens from very
real abuses, including bounty hunting.
We have 15 years of experience documenting what happens
when Federal legislation to prevent abuse is not enacted. So, I
do not think we have to wait for more abuses for justification
of the legislation.
Now, this Committee has been very supportive of law
enforcement. You recognized this in your opening statement
about two bills of importance to police officers. But the
public is becoming increasingly discontent with the record of
law enforcement in civil rights.
Already Members of both parties are pushing for hearings
and even legislation on police brutality and killings.
So, from me, a bit of advice. I think this is the wrong
time for law enforcement to display any kind of a tin ear and
oppose needed reforms.
Now, you have said you were willing to work for reforms and
work with us and I appreciate that very much and I have told
you my other side of the story. And if you want a few seconds
to respond, I would be glad to. Otherwise, I am going to ask
Ms. Sheth a question.
Mr. Canterbury. Senator Grassley, I think as the
practitioners, rank-and-file officers, the appropriations of
funds are way beyond our capabilities. But I will tell you,
from the field level, we are almost down 100,000 officers of
where we were in 1994. Crime levels are on the rise everywhere
and it is just a fact of life.
If there is not adequate funding for State and local law
enforcement, then our abilities to perform are going to be
reduced, and we see that all over the country. And the biggest
problem in law enforcement right now is the lack of training
funds.
And we do agree that there are implementation problems with
money, that it is not appropriated properly within the
agencies, but that is way beyond the level of the rank-and-file
police officers in this country.
But we will gladly work with you to improve that. We
believe that some reforms are needed and we would be glad to
work with your staff on that.
Chairman Grassley. Ms. Sheth, do you have any reaction to
the testimony of law enforcement today?
Ms. Sheth. Yes. Thank you, Chairman Grassley. I agree that
it is simply almost offensive to call these stories anecdotes--
62,000 cases of currency seizures on our highways are not
anecdotes.
More than 2,500 cases of structuring seizures are not
anecdotes. They are statistics that show the deeply entrenched
financial interests of law enforcement and agencies and in the
systemic abuse.
Mr. Canterbury is right that our State and local law
enforcement should be adequately funded, but that funding
should not come from this unaccountable revenue stream that
forfeiture provides.
As Ranking Member Leahy accurately described, these are
slush funds. And as The Washington Post reported, since 2008,
298 police departments and 210 task forces have seized the
equivalent of 20 percent or more of their annual budgets
through forfeiture. This is a slush fund that needs to be
stopped.
And I would like to correct the record because equitable
sharing is not what is allowing--it is a windfall for State and
local law enforcement. It is not a replacement for their
budget.
Deputy Sheriff in Kane County, Illinois, has characterized
this as a tax-liberating goldmine. Law enforcement agencies at
all levels have relied on these forfeiture funds to pad their
budgets.
Current law under the asset forfeiture fund allows State
and local law enforcement to recoup their expenses in any joint
investigation and task forces. So, the equitable sharing
proceeds, the 80 percent they receive is on top of that.
Chairman Grassley. Senator Leahy.
Senator Leahy. Thank you.
Mr. Canterbury, one, I want to thank you. I think everybody
would join this. You and Mr. Pasco have been a huge help to
this Committee, certainly over the years I have been a Member,
and I appreciate that.
I also know of your own practical experience as a law
enforcement officer. I think you would probably agree with me
that if laws are being abused, that is wrong. And some changes
are needed. I think these changes have to be done carefully.
We have to understand the importance of asset forfeiture
funds, assuming they are taken appropriately, how they support
joint task forces and Federal, State and local law enforcement.
I think of the Vermont task force. We have a surge in
heroin trafficking in our State and we could only attack it
through this joint task force.
If you lose all asset forfeitures, what would that do to
joint task forces, not just in my State, but in all our States?
Mr. Canterbury. I think it would be devastating and it is
just the lack of State and local money to continue to fund
officers that are doing county or Statewide task forces where
they would be retained in their own local jurisdictions.
For instance, in my State, our criminal law does not allow
joint-use facilities in--I do not have arrest powers outside of
my county, and it is only normally through Federal task forces
that we are able to work large chunks of territory in our State
and supplement those small sheriff departments that could not
afford a narcotics or criminal investigation division to do
organized crime.
Senator Leahy. We also find that they are used to help
victims of crime.
Mr. Canterbury. Well, a number of cases. For instance, in
New Jersey, the 21 prosecutors there use asset forfeiture money
to supply law enforcement agencies with NARCAN. Over 800 lives
have been saved with that money in New Jersey. They have also
used that money for drug education programs. Same thing in
Florida, in Broward County. They built 10 Scholastic Family and
Community Reading Oases to promote literacy. And a lot of those
funds are used in lower economic areas to help with education
programs, especially in the area of drug resistance.
Senator Leahy. Thank you.
Now, Ms. Sheth, I listened to what Mr. Caswell said about
property being seized and I referenced an article in today's
press of another situation in Maryland.
If property is going to be seized, just as though somebody
is going to be fined or sent to prison or anything else, you
have got to have due process. I think we would both agree on
that.
You testified about the need to address the inadequate
procedural safeguards of protecting innocent owners.
What is the single most important--you have had experience
in this, so I ask you this: What is the single most important
procedural reform we could provide in civil asset forfeiture
cases?
Ms. Sheth. The single most effective way in terms of
procedure would be to restore the presumption of innocence.
Currently, as I said in my testimony, property owners are
presumed guilty and this is true at the administrative level.
So, I can walk through basically how a seizure works and
all the different hurdles property owners have to overcome. The
deck is really stacked against property owners.
First, they are not guaranteed counsel and so property
owners would have to hire counsel to get back property that is
often worth less than the cost of legal fees it would to get
their property back.
Second, once the property is taken, it immediately goes to
an administrative proceeding and there the property--once
property has been administratively forfeited, it is presumed
valid. Property owners have the burden to file a claim timely
and if they miss that deadline by a single day, their property
is automatically forfeited. And even when they get to court--so
even if they do timely file a claim, it gets out of the
administrative procedures and into court, the burden is on them
to show that they affirmatively did not know about the illegal
activity or did not consent to it.
So, these procedures are all stacked against property
owners to the benefit of the Government, and that is not the
way it should be when we are talking about innocent property
owners.
Senator Leahy. Thank you. I think, Mr. Chairman, both you
and I would agree that we want to balance the appropriate needs
of law enforcement, but also the basic rights of people. I
think that can be done, but I will work with you on this.
Chairman Grassley. And we know in the Senate if we do not
get some bipartisan agreement, nothing is going to happen. So,
we will have to continue to talk.
Senator Leahy. Thank you.
Chairman Grassley. Senator Lee.
Senator Lee. Thank you, Chairman Grassley, for organizing
this hearing on this very important topic.
Thanks to each of you for coming to talk to us about it
today.
The Constitution says that no person shall be deprived of
life, liberty, or property without due process of law. Despite
this protection that we have in our Constitution, the testimony
today and recent news reports indicate that due process is
often ignored when it comes to civil asset forfeiture.
While we all agree that crime should not pay, Federal
forfeiture laws have enabled and even, in some cases,
incentivized law enforcement practices that have great
potential to threaten our liberty.
That is why I am a cosponsor of the FAIR Act, along with my
colleague, Senator Rand Paul. I look forward to working with my
fellow legislators to eliminate the profit incentive that
forfeiture creates and to adopt procedures that have a greater
capacity to protect our constitutional rights.
Ms. Sheth, I wanted to ask you a few questions. The
Department of Justice recently announced changes to its
equitable sharing program and you have described how exceptions
to that policy still allow equitable sharing with the States.
But what about the Federal system? To what extent is the
profit incentive a problem within the Federal system itself and
do you think we need to reform the ability of Federal agencies
to keep the money and the property that they seize in civil
asset forfeiture?
Ms. Sheth. Yes. Absolutely, yes. Any reform that does not
target that profit incentive at the Federal level will be
ineffective. That was the problem with the CAFRA reform back in
2000 and that will continue to be a problem until it is
addressed.
It is what is driving and fueling the abuse that we see.
Before 1985, proceeds from civil forfeitures went to a general
fund where Congress had control over how that money was spent.
But in 1985, the law was changed to create the asset forfeiture
fund, giving the Justice Department direct control, what
Chairman Grassley referred to as that direct connection between
forfeiture proceeds and how it is spent.
And since that time, the funds have grown exponentially. In
1986, after the forfeiture fund was created, there was only
$93.7 million in deposits. Twenty years later, annual deposits
regularly top over $1 billion. And the same is true with the
Treasury forfeiture fund.
It is not enough to simply end equitable sharing. Congress
needs to reclaim its control and oversight over this
unaccountable funding stream.
Senator Lee. So, you are talking about a very sharp
departure, a very sharp shift that happened. You had pre-1985
and you had post-1985 and you saw roughly a tenfold increase.
Ms. Sheth. Exactly.
Senator Lee. Or more as a result of that change. That is
fascinating. These things, I take it, you do not regard as
coincidental.
Ms. Sheth. No. I think there is a direct correlation. It is
a financial incentive. People respond to incentives.
Senator Lee. Now, many of the problematic forfeitures tend
to arise in the context of structuring and the Department of
Justice and IRS recently announced new policies regarding
structuring forfeitures.
Are these policies adequate, in your opinion, and if not,
what additional reforms do you think ought to be made?
Ms. Sheth. No. Again, these policy changes are not
adequate. Again, they could be reversible by the next
commissioner or the next administration. They need to be
codified. But even these policy changes contain loopholes for
exceptional cases.
For example, the IRS Commissioner himself testified that
those exceptional cases could include repeated instances. So,
we could have someone like Carole Hinders, again, still fall
under that same trap.
And to give you an idea of the scope of the problem, annual
seizures have increased fivefold over the 8 years from 2005 to
2012. In at least one-third of those cases, there is no claim
of any criminal activity besides a series of cash transactions
under $10,000. And 80 percent of those structuring cases done
by the IRS are civil, not criminal.
So, that is certainly something that needs to be addressed.
In addition, those policy changes are not retroactive to
pending cases. So, people who currently already had the
injustice done to them have no resource.
The heart of the problem really is to clarify the standard
of intent that is required. To be guilty of a crime, a person
has to have a guilty mind or a mens rea and right now under
current law that is not there.
The law needs to be changed to show that willfully evading
the reporting requirements by structuring transactions is what
is a felony.
Senator Lee. Okay. My time has expired. But if we get
another round or if you have an opportunity in response to
questions from my other colleagues, I want to talk to you more
later, if we get the chance, about what we can do to undo the
problem that you describe in which people are effectively
deemed guilty until proven innocent and what we need to do to
shift that burden of proof back around.
Thank you, Mr. Chairman.
Chairman Grassley. I think we will have time for a second
round, if you want a second round.
Senator Tillis.
Senator Tillis. Thank you, Mr. Chair.
To follow up on the discussion that Senator Lee was having
of pre-1985 and post-1985, I just want to make sure I have the
numbers right. I think asset forfeitures in the 1986 timeframe
were about $93 million, $94 million. By 2008, it was $1
billion. And by 2010, it was $2.5 billion. There has been a
real escalation.
Ms. Sheth. And currently that is $4.4 billion annually in
this last year.
Senator Tillis. Mr. Canterbury, I just want to get your
sense as to the Fraternal Order of Police. Are they really
making a judgment about the fairness and the appropriateness of
seizures, or are they concerned with the funding risk that
would come from refining it and bending that curve in the other
direction?
In other words, is there a strong ideological bias toward
the way we do it today, or is it really a concern of making
sure law enforcement officers have adequate funding?
Mr. Canterbury. Well, I think it is adequate funding is
always one of our number 1 issues. And we do not disagree that
there can be due process issues that need to be resolved or
strengthened. We do not want innocent people to lose their
money, Senator Tillis.
Senator Tillis. This question is either for Ms. Sheth--is
that the correct pronunciation?
Ms. Sheth. Yes.
Senator Tillis. Or for Mr. Bach. And it has to do more with
the standard of proof and about how we should look at reforms.
But what about earlier in the cycle? In other words, what
kind of discussions or recommendations are there with respect
to before the seizure decision is made?
In other words, when you are out there, and someone is
about to make a decision based on a relatively low standard or
a standard that certainly biases someone who is in a position
to make a seizure decision, has there been discussion about
moving further up into the chain so you have fewer cases like
Mr. Caswell's case that you are actually adjudicating? And, any
current recommendations or focus on that?
Ms. Sheth. Certainly, the problem is that the standard is
probable cause to seize and police officers and the law
enforcement community and the courts have thought that simply
carrying too much money can be probable cause of a crime, even
when it is not connected to anything else, even when no drugs
are found or drug paraphernalia, and that is a huge problem.
In terms of moving things up in the timeline, even after it
is seized, there should be a prompt opportunity to contest that
seizure, and that is something that the Federal courts in New
York, in DC, in Chicago, have all enacted, that the Due Process
Clause requires a prompt opportunity for people like Mr.
Caswell or innocent property owners to show that even if the
police had on-the-ground probable cause determination, there is
other evidence out there that shows, I am innocent.
Senator Tillis. Mr. Bach, why don't you go ahead and
respond? I have another point.
Mr. Bach [off microphone]. The very process which proceeds
with just the prosecution. The defense, the defendant did not
have an opportunity to participate in the determination or even
a right to be heard.
So, a determination of probable cause is made behind closed
doors, in secret by a grand jury, that is the way our process
works, and then the restraint is imposed as a result of that
determination and only then do we get to the question of
whether the defendant can have any say. And now the Supreme
Court has said they can only have say on a very limited aspect
of that, but not more.
Senator Tillis. By the way, Mr. Canterbury, when I am
thinking about these seizures, I am not only thinking about a
man or woman in uniform making this decision, I am thinking
about the IRS; I am thinking about one case in North Carolina
where the EPA and Homeland Security did a joint raid on a
couple about an hour from my home. So, I am thinking more
broadly, not just in terms of the area that you would focus.
In Mr. Caswell's case, once you have gotten to the point to
where you are trying to seek relief, what kinds of things could
we do to expedite the process or make it less burdensome for
someone who was in Mr. Caswell's position in terms of direction
of reforms?
Ms. Sheth. Certainly, providing counsel would be a huge
step. Beyond that, it would be to shorten the timeframe. The
Government has a significant amount of time to file a
forfeiture action after property has been seized or restrained
and to shorten that timeframe while providing counsel so that
it does not burden the property owner to try to comply with
those timelines.
In addition, Mr. Caswell's case is a great example of how
even the current law has been undermined by judicial
interpretation. So, under current law, forfeitures are very
broad. They consider all sorts of facilitating property.
CAFRA was intended to mean that facilitation would be
instrumentalities. So, the house that is used to store drugs,
the place that is used to manufacture drugs, not simply
incidental use of the property, for example, by third-party
renters. And under current law, that was a very difficult thing
to prove.
That substantial connection needs to be clarified and we
would recommend codifying the decision in Caswell into current
law.
Senator Tillis. Thank you. Thank you, Mr. Chair.
Chairman Grassley. Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
There have been concerns about forfeiture and I think we
should listen to those concerns. But, colleagues, it is
unthinkable that we would make it harder for the Government to
take money from a drug dealer than it is for a businessperson
to defend themselves in a lawsuit.
It is perfectly appropriate, as you try to deter illegal
behavior, to take the profit out of it. Criminal violators
ought not to be able to keep their ill-gotten gains.
I mean, you catch somebody with $200,000 and a dope dealer,
he should not keep the money. He should not be able to use the
money to hire a lawyer any more than a bank robber gets to use
the money he got from the bank to pay for his lawyer or give to
his children or anything else he might like to do with the ill-
gotten gains.
It is an historic part of American and English law before
America was founded. It is not a criminal case. It is not an
action to put somebody in jail. It is an action in rem against
the product; in this case, the product of the illegal
transactions.
And the way the cases work, colleagues, so often is that
individuals whose money is stolen or money they may have stolen
or taken by the Federal officers, that money, you make a claim
against it. Do you not, Ms. Sheth, Mr. Bach? You make a claim
to get your money returned.
Ms. Sheth. To correct the record, actually, the standard is
preponderance of the evidence, not probable cause. But what you
are describing, when the drug dealer is actually convicted,
that is fine. Once you actually get a conviction, that it is,
in fact, a drug dealer, then that is great and it is
preponderance of the evidence.
Senator Sessions. Well, you would agree that it is a
separate action.
Ms. Sheth. It is a separate action.
Senator Sessions. You have got two things. One thing is,
are you trying to put--or you have the proof to put somebody in
jail. Another thing is, an action in rem against the cash that
may have been seized and as a result of that, you get a court
hearing.
Ms. Sheth. So, if I could just explain the origins of this,
because I think there is a little bit of a misunderstanding.
These are archaic laws that are based on the legal fiction
that property itself is guilty. At the time of our founding,
they were limiting to enforcing customs duties because they
provided 80 to 90 percent of our revenue.
Senator Sessions. But it is the same principle, absolutely
the same principle of ancient origin.
Ms. Sheth. It is the same principle that----
Senator Sessions. You are correct. And you are not taking
somebody's liberty and the person, all they have to do is to
make a claim for the property and if they can prove it is a
lawful source, it is produced from a lawful source or
otherwise, they get to keep it. If they cannot prove that, then
they do not.
That is what happens. And what happens so often in the
cases is--Chief, I am sure you have seen it--the person with
the money never shows up to even claim the money. Is that not
correct?
Mr. Canterbury. A lot of these cases are that way and/or
they cede the money over in the investigation.
Senator Sessions. And the reason is because they do not
have any basis to show it was anything other than dope money.
That is the problem and many of the cases, I would suggest, are
cash seized in drug-related transactions. A large percentage of
them are not contested because they have to produce documents
to say where they got it.
Well, I got it from the lottery. Well, what lottery? Your
name is on a check. Let us see a copy of the check. What bank
did you deposit it to? Who cashed the check? They do not have
an answer for that. They have done nothing in their lives but
sell dope and they made a bunch of money from it.
Chief, once the money is forfeited, you do not give it back
to the person to purchase the drugs. That would not make sense.
So, the Government takes the money. And what is wrong with
having the law enforcement officers who did the investigations
and expended taxpayers' money to prove the case and seized this
illegal drug money, what is wrong with them keeping the money?
Mr. Canterbury. We do not see anything wrong with it.
Senator Sessions. I do not either. The administration has
even stopped adopting cases that are products of State
officers' work. A Federal prosecutor, as I was, has interstate
subpoena power. They have trained prosecutors who are skilled
at handling these cases.
They go before Federal judges who do not cheat people and
they are able to handle the case where a busy district attorney
with a murder case on his docket tomorrow is not often able to
do.
I think it makes no sense to say that the Federal
Government cannot prosecute the case and share some of the
proceeds with the local police officer who helped maybe
interdict a major drug dealer.
Chairman Grassley. Senator Flake.
Senator Flake. Thank you, Mr. Chairman. Thank you all. I
apologize for not being here earlier and I apologize if I am
plowing old ground here, as well.
I wanted to first make a comment. I think we all understand
that, you are probably right, about 95 percent of this is maybe
dope money or whatever else and they never come to claim it
because they cannot prove a lawful source, but, I think, we are
all concerned or ought to be concerned about the other 5
percent and I think that we need to make sure that their rights
are protected and sometimes I think they get swept up into this
and go through a process they should not have to go through in
order to get their lawful property back.
But in January 2015, DOJ had announced its revised position
on adoptive seizures and this policy included a public safety
exemption for items such as firearms, ammunition and
explosives. I want to just better understand this a little bit.
So, if I could just understand, of the overall adoptive
seizures, do you know how many of these involved items included
in the public safety exemption? We will start on the left.
Ms. Sheth. Unfortunately, no. But we do know that most of
the seizures are not actually adoptive seizures under equitable
sharing. Most of them are what are known as joint investigative
seizures and those are about 80 percent.
So, even under the new policy, though, to address the
public safety exception, the reason it is not satisfactory is
because even beyond those four non-exhaustive categories of
firearms, ammunition, explosives, and property related to child
pornography, the policy gives the Assistant Attorney General of
the Criminal Division sole discretion to authorize exceptions
in public safety beyond those categories.
So, there is no real standard of how that should be
enforced. And since it just was announced, it is too early to
say how it is going to be enforced.
Senator Flake. Criminal forfeiture, is that sufficient to
take care of these contraband items?
Ms. Sheth. Exactly. Criminal forfeiture would be sufficient
and there is no need for the public safety exemption for
adoptive seizures.
Senator Flake. And are you aware of any State that does not
allow for civil asset forfeiture of public safety items like
this?
Ms. Sheth. North Carolina does not allow for civil
forfeiture, period, and many States are now engaged in
comprehensive reform, including the District of Columbia, to
reverse this trend of the abuse of civil forfeiture.
Senator Flake. Mr. Canterbury, you mentioned in your
testimony that you are ready to work with this Committee on
this issue, specifically improving due process.
One such proposed reform is increasing the burden, as we
have talked about here, from preponderance of the evidence to
clear and convincing. But you testified that FOP does not
support increasing this standard at this time.
Does that mean at some point we can get to it or what is
your feeling there?
Mr. Canterbury. We would like to have further discussions
and we would also like to separate the criminal asset
forfeiture funds from civil asset where there is no criminal
activity involved at all, and we would also like to see what
the DOJ changes actually do before we jump to any conclusions.
They have only been in existence a few months. When they
came into existence, we had very little to say about them and I
think you would have expected, if we were concerned about them,
not adopting our criminal cases, we would have been here
raising that issue.
But we do not think they have been around long enough to
really demonstrate whether they are going to work and we
believe some of those changes are going to slow down innocent
victims from having their assets taken.
Senator Flake. Thank you, Mr. Chairman.
Chairman Grassley. We will do a second round and I have
just a couple of questions that I want to ask. I am going to
start with Mr. Caswell.
Of course, I express sorry for all the trouble you had to
go through because of law enforcement overreach. Could you give
us the reasons why you think your property was targeted for
asset seizure perhaps compared to any other properties you
might know something about?
Mr. Caswell. Well, there is a DEA agent that testified that
they will not go after a property unless the owner has at least
$50,000 worth of equity in it. Now, the motel was paid off and
I just sold it for $2.1 million, and that is what they were
after.
Right up the street from us there is as Motel 6 and a Home
Depot that have had more problems than we have had and they did
not go after them. They gave the Motel 6 a warning. They never
gave us a warning. They never came to me and said I ought to be
doing anything different or all that.
They just saw us as a soft target with a big financial gain
for themselves and that is why I feel they went after us
instead of any other businesses there. It was all about money.
It was not about drugs.
Chairman Grassley. And for you, Mr. Bach, did the hearing
process that the Second Circuit provided before Kaley work
efficiently?
Mr. Bach. It works very efficiently. Often, there is no
need for a court to get involved. Just the prospect of a
hearing encourages the defense lawyer and the prosecutor to
talk to each other, figure out what is reasonable in a given
case, and work it out without having to take any of the court's
time. So, it is very efficient.
Chairman Grassley. I think that I should call on Senator
Perdue, because you have not had your first chance to ask
questions.
Senator Perdue, are you ready to go? We were doing a second
round, but since you were not here for the first round, I ought
to let you in.
Senator Perdue. I am, Mr. Chairman. Thank you so much for
the forbearance.
First, thank you all for being here. I apologize I missed
your opening testimony.
Am I correct, Ms. Sheth, that in understanding from your
testimony that you want to see not only the elimination of the
equitable sharing program, but also all forms of civil asset
forfeiture at the Federal level? Would you speak to that,
please?
Ms. Sheth. No. Ideally, that would be great to get rid of
civil forfeiture entirely, but no. What we are proposing is to
get rid of the funding, restore congressional control over
forfeitures both in criminal and civil so that proceeds from
forfeiture go directly back to Congress, for this body and the
House of Representatives to decide how that money should be
spent, not the Department of Justice or Treasury.
Senator Perdue. So, if it comes off the table or is reduced
dramatically, what are the top two or three reforms that you
would see to the current system for the Institute for Justice
that you guys would like to see?
Ms. Sheth. Most significantly is to eliminate that profit
incentive and the ability of the DOJ and the Treasury
Department to self-finance, by requiring proceeds to go to the
general fund, and to abolish equitable sharing.
Equitable sharing was enacted back in 1985 and at that
time, State and local law enforcement did not have their own
State forfeiture laws. So, there is no reason why they need to
rely on Federal laws to do an end run around their own State
laws.
Additionally, we should restore the presumption of
innocence by placing the burden of proof on the Government to
show that the property owner actually was guilty or was a drug
dealer or was somehow involved in a crime.
We should also provide a right to counsel, especially for
those who cannot afford counsel. Without the assistance of
counsel, Mr. Caswell might have thrown in the towel and settled
that forfeiture action.
And finally, we need to raise the burden of proof on the
Government from preponderance of the evidence to at least clear
and convincing, which is the highest standard under civil
proceedings.
And finally, to clarify the mens rea requirement for
structuring and also provide for a prompt hearing, not just for
criminal forfeitures in the context of Kaley, but also in civil
forfeitures so that property owners have an opportunity to
contest the seizure of their property.
Finally, we should also do some transparency and beef up
the reporting requirements so we understand how the money is
being spent and how forfeiture is being used by both the
Departments of Justice and Treasury.
Senator Perdue. Would you give us your observations on the
Kaley decision from the Supreme Court last year, as well,
briefly?
Ms. Sheth. Sure. I agree completely with Mr. Bach that it
was wrongly decided. And I will go one step further, because it
is not just the right to counsel that is at stake in those
situations.
We are talking very much about punishing people before
trial. They have not been judged to be guilty by a jury and
their assets are being taken, property is being taken from them
without that finding of guilt, and they have no opportunity to
contest that.
And so beyond just they should have an opportunity to
contest the seizure, when that money is needed to provide
counsel, what about the person that needs that money to pay
their rent, that needs that money to pay their utilities or pay
their mortgage? Are they supposed to be penalized without any
sort of opportunity?
So, Kaley should have been decided in terms of the Sixth
Amendment right to counsel, but also, more importantly, the
Fifth Amendment right to process, to protect property.
Senator Perdue. My time is about up. Mr. Canterbury, could
you give us a brief--discuss the FOP's position on recent
policy changes made by the Attorney General?
Mr. Canterbury. Sir, we are waiting to see what happens
with them. I mean, they have been put in place. They have only
been there since January and we really do not have any
anecdotal information to determine whether or not they are
going to assist in the problem.
So, we just think they need to be there a little bit longer
so we can see what the results are.
Senator Perdue. In your organization's view, though, what
is the right way to find the balance here?
Mr. Canterbury. As far as the equitable sharing, it is a
funding issue for law enforcement. And we are asked to do a
tremendous number of things that would normally be either
Federal or State responsibility and without the funds that are
derived from equitable sharing, a lot of those things are going
to slip through the cracks.
Senator Perdue. I see. My time is up, Mr. Chairman. Thank
you.
Chairman Grassley [off microphone]. A 1:30 appointment. So,
it will be Senator Lee and then Senator Sessions and then
Senator Flake, if all of you want to ask questions. Go ahead,
Senator Lee.
Senator Lee. Ms. Sheth, I would like to kind of pick up
where we left off before and just talk about what we need to do
to solve the problem of burden shifting. What would be the
ideal kind of legislation, as you would envision it, and how
would it change the burden?
Ms. Sheth. Sure. At initial step, the administrative
forfeitures should be wholesale revised. The burden should not
be on property owners from the beginning to respond to an
agency with a direct financial interest in the outcome of this.
When property is taken, it should be the burden of the
Government to file--at least take the initial step and show--
file a complaint in Federal court, just like all other civil
proceedings.
Beyond that, once the Government--the standard of proof in
civil proceedings should be elevated from mere preponderance of
the evidence to clear and convincing, and then the Government
should also bear the burden of showing that the property owner
knew about or consented to the illegal activity.
Under this regime, there would still be an affirmative
defense for innocent property owners like Mr. Caswell to show
that they took all reasonable measures to mitigate that or to
stop the illegal use of their property, but the burden should
not be on them to prove a negative that they did not know about
something.
Senator Lee. So, under the status quo as it operates, in
your experience, how hard is it generally for an innocent
person to get his or her property back once it has been seized
in a civil asset forfeiture proceeding?
Ms. Sheth. It is very difficult. It is extremely hard
because, as I testified before, the deck is stacked against
property owners. You are not guarantee counsel and often the
property is worth less than the amount of legal fees.
The agency will immediately start administrative
forfeitures and the burden is on property owners to timely file
a claim.
There have been numerous reports of even the notices that
property owners get are unclear. People do not know what agency
of all the--between the State and local that seize their
property, where are they supposed to file this claim. And there
is no good cause exception. If the property owner misses that
deadline by a single day or even just minutes late from the
filing deadline, it is administratively forfeited and that is
it.
If they are lucky enough to survive all these loopholes and
make it to Federal court by timely filing a claim, then, again,
these burdens are still stacked against property owners.
And even in the end, they might be able to recover
attorney's fees, but that provision has also been gutted. And
so very frequently property owners do not actually get--recover
their attorney's fees under CAFRA.
So, it is a system that is stacked against property owners
and that needs to change.
Senator Lee. And just to be clear, you do not, I take it,
have a problem with the Government seizing property that was
involved in a crime, seizing property from someone who was
involved in a crime and where guilt is adequately proven.
Ms. Sheth. Right. And that is criminal forfeiture and
nothing that we are talking about today or that the Institute
for Justice recommends is changing criminal forfeiture. This is
all pursuant to civil forfeiture, this archaic legal fiction
that property itself--that cannot act or think--is somehow
guilty.
Senator Lee. Right. My understanding is that some trace the
civil forfeiture laws that we have today back to what was known
at common law as the Deodand, which was based on a theory that
the object--an object that was used in killing somebody,
sometimes by accident, needed to be forfeited and seized, in
part, because of a superstition that it was evil, the thing
itself was evil.
Do you share that view that that is sort of where it came
from?
Ms. Sheth. Yes. That is exactly where it came from. It was
the medieval origins, the superstitious belief that objects
independently acted to commit crimes.
In the U.S., civil forfeiture traces its origins to the
practical necessity of obtaining jurisdiction over property
when the owner was overseas or was not available to have
jurisdiction over, and that justification is no longer true.
There are many cases. The people that we are talking about
are right there. Courts have jurisdiction over the person and
can bring a criminal forfeiture action.
Even during Prohibition, which expanded forfeiture, it was
limited to instrumentality, so the vehicle that was
transporting illegal liquor. It was not this catch-all of all
property, no matter how tenuously connected to a crime. And the
Supreme Court has made clear, over and over again, that
forfeiture is drastic. It is not favored. In fact, is a
draconian method.
So, we do need to rein it in from the 1980s and this
constant expansion and proliferation.
Senator Lee. Thank you. I do not know who is next.
Senator Sessions. I am next, right?
Well, look, Chief, I am very unhappy. You need not to be
defensive about this. What has been going on with taking and
seizing and forfeiting through a government judicial process,
illegal gains from criminal enterprises, is not wrong and it
should not have a burden of proof higher than a normal civil
case and should not have a burden of proof higher than probable
cause, which is what you can indict somebody and put them in
jail for murder on.
It should not be a higher standard than a police officer
can arrest a person, take them to the jailhouse, and lock them
up on probable cause.
I am amazed that the Department of Justice would say they
won't adopt these cases anymore. This is going to fix
something?
So, you have a local district attorney and a local police
officer in a small town, they catch a guy hauling drugs and he
has got frequently half a million dollars or $1 million in
cash. He is coming from Texas or Miami.
The local DA is going to be facing a big-town lawyer, he
does not have the ability to issue subpoenas to Miami or Laredo
or Phoenix or New York. And so, the case goes to a Federal
court.
The money is taken. The claim is made to the Federal
officials. It goes before a Federal judge and you have a case
and they have Federal prosecutors using Federal law and there
is no problem with dual jurisdictions.
Federal law and State law compliment each other all the
time. And so the case goes up and if the guy can prove that he
took it out of his bank account, prove it was a bonus from his
work, prove it is his saving account, he gets the money back.
The Department of Justice has stopped having Federal
prosecutors take these cases over, leaving it, oftentimes, on
overworked local police officers and prosecutors, local county
attorneys. And there is nothing wrong with--once the forfeiture
is being accomplished, I think then that the money be given to
the officers who helped develop the case.
You can say that creates an incentive, it does. And, Mr.
Caswell, I am not saying there cannot be abuses in this system.
Humanity runs systems and we have had examples of police
officers shooting people without justification. We have seen
that in the news. So, things do happen. But that does not mean
you eliminate the ability of police officers to arrest
somebody.
All right. Mr. Caswell, I think we should be open about
this. We have a letter from the Alabama Law Enforcement Agency,
Spencer Collier, who is the head of that agency, strongly
supporting continuing the law and pointing out the moneys that
are often seized from these people.
He said in his letter to me, to Senator Grassley, in just
the past 2 weeks, State law enforcement officers--this means
the State troopers--initiated stops that led to $750,000 in
seizures. Most people do not carry $750,000 in their car.
So, I have that letter. I would offer it to the record. And
a letter from the Major Cities Chiefs Association, the Major
County Sheriffs' Association, the International Association of
Chiefs of Police, the National Sheriffs' Association, the
National District Attorneys Association, and the Association of
State Criminal Investigative Agencies, and others I'm sure will
be commenting once they find out the dramatic actions that
would be taken that would undermine, I think, a good procedure.
[The information appears as submissions for the record.]
Senator Sessions. Now, I do think our colleagues are
correct to say are there problems. Structuring can be abused. I
think it has always been complained about and people have made
some valid points about it.
The IRS has great powers and maybe that is necessary. The
very concept of--if a hotel owner is using the hotel or his
house, a homeowner, to move drugs, it is forfeitable. Now, if
the house or the motel has no equity or it is being rented,
then you are not going to have a forfeiture action, obviously,
undertaken because there is no equity to receive, to obtain.
There is nothing, I think, wrong with that.
So, I would say we--and, Ms. Sheth, on the standard of
proof, I think you are correct. Probable cause to arrest
someone or to indict someone is the standard. Preponderance of
the evidence is a higher standard than that. You have to have
that to prevail in a forfeiture case, right?
Ms. Sheth. Only when it is in court and most of these are
done administratively without any judicial supervision. In
fact, that is 64 percent of cases.
Senator Sessions. Well, they end there, but they can appeal
to court, can they not?
Ms. Sheth. No. In fact, no. If they have missed the
deadline to----
Senator Sessions. Well, if they miss the deadline----
Ms. Sheth. Because they do not have counsel and they do not
know----
Senator Sessions. If you miss the deadline you are out.
Surely you know that. You can get the court on your cases and
clear and convincing is an extraordinarily high standard and I
think should not be adopted, when Senator Perdue's business can
be sued on a probable cause standard.
Thank you.
Senator Flake. Thank you. Just one quick question. In 1999,
the total value of asset forfeiture recoveries by the
Department of Justice was approximately $535 million. Then in
2000, when the Reform Act was passed, that number dropped to
$312 million. So, $535 million to $312 million, a decrease of
about 40 percent.
In 2001, total asset forfeiture by DOJ was under $200
million, a decrease of 36.3 percent. However, in 2008, asset
forfeiture recoveries surpassed $1 billion. Based on those
numbers, it looks like reforms were initially successful, but
then it ramped up again.
Mr. Bach, do you have any explanation for that or why has
it gone this way?
Mr. Bach. That is not something that I have studied in
particular. Maybe Ms. Sheth can shed some light on that.
Senator Flake. Ms. Sheth?
Ms. Sheth. Yes. It is precisely because of this profit
incentive. With all due respect, the problem with law
enforcement receiving this money directly is because it skews
law enforcement priorities from pursuing justice and pursuing
criminals to padding their own budget, and this is best seen
perhaps by an investigation that Tennessee did of its local law
enforcement and the drug task forces.
It found that officers in the drug task force were 10 times
more likely to patrol the westbound lanes of I-40 rather than
the eastbound lanes. And why is that? It is because the illegal
drugs from Mexico were being transported into Nashville on the
eastbound lanes and it was only on the westbound lanes that the
money was flowing.
So, these civil forfeiture laws are actually skewing law
enforcement objectives from curtailing the influx of drugs to
pursuing cash. And it is my opinion--and, I think, the opinion
of most Americans--that we should be enforcing both sides of
that highway, stopping drugs, as well as stopping the money and
disarming criminals.
It is probably no surprise then that there are low
clearance rates for violent crimes because instead of pursuing
solving these kinds of violent crimes like murders, instead we
are focusing on a drug trade, but even not for drug kingpins,
for low-level activity, and that needs to stop by
disincentivizing the profit incentive.
Senator Flake. Mr. Canterbury, do you dispute the findings
of that study?
Mr. Canterbury. Senator, we are just trying to catch
criminals. Whether they have got the money or the cash or the
drugs, if they involved in criminal activity, as far as we are
concerned, they are criminals. And I think eastbound-westbound
does not matter. We are trying to get both off the street. If
you have got the money, you are keeping more drugs off the
street as well.
And I disagree with the violent crime. I think law
enforcement in this country has done a great job on violent
crime. Those stats are down. Larceny crimes are up, burglaries
are up, but violent crime has been down.
So, I think that is quite a stretch.
Senator Flake. But this study showing 10 times more likely
to patrol westbound lanes as opposed to eastbound lanes, do you
think there are problems with the methodology of the study?
Mr. Canterbury. I have not seen the study, but it sounds to
me like there would be. It does not sound like something that
local law enforcement would be engaged in. When you are doing
highway interdictions to look for money or drugs, it is the
exact same criminal characteristics. We do not smell money if
it drives by.
Senator Flake. Ms. Sheth, you support that study.
Ms. Sheth. Yes. I stand by this study. I would also like to
note the hypocrisy that basically carrying too much cash has
become a crime and if people cannot document the way they spent
it or the way they have received it, it can be seized by the
Government.
Yet, the Treasury Department and the Justice Department
have not kept good of their own recordkeeping of how they are
spending forfeiture funds, and that kind of hypocrisy shows the
abuse of civil forfeiture laws and there needs to be more
transparency in reporting so we do know exactly how the money
is being spent and how highways are being enforced.
Senator Flake. Thank you. Back to you, Senator Sessions.
Senator Sessions [presiding]. Thank you. I think we should
listen to the concerns that have been raised. I do not say that
no change should be done in this process, but police officers
go where the criminals are. If they are on the west lane
hauling dope money by the millions of dollars, I do not see
anything wrong with somebody making that choice that this is an
avenue drug dealers use a lot.
So, we will listen. I know Senator Grassley is serious
about this issue. Members of the Committee care about it and
want to make sure that this area is properly and professionally
handled. But we will have to make some big decisions. Are we
going to end sharing? I think that would be a huge detriment to
law enforcement.
I think it is a big mistake not to allow the Federal
Government to adopt cases where they can assist their local law
enforcement brothers.
We take gun cases in Federal court. If it is a violation of
State law or Federal law, Federal court cases have mandatory
sentences and many of those are adopted in Federal court. We
are not going to stop that. I do not think it is wrong for the
Federal Government to adopt State cases.
Thank you all. Anything else? We will keep the record open
for 1 week for further questions.
We are adjourned.
[Whereupon, at 11:46 a.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Jonathan Bach, Chuck Canterbury,
and Darpana Sheth by Senator Grassley
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Questions Submitted to Chuck Canterbury by Senator Klobuchar
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Jonathan Bach by Senator Vitter
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Questions Submitted to Chuck Canterbury by Senator Vitter
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Questions Submitted to Darpana Sheth by Senator Vitter
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Russ Caswell by Senator Vitter
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Responses of Jonathan Bach to Questions Submitted by Senator Grassley
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Responses of Jonathan Bach to Questions Submitted by Senator Vitter
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Responses of Chuck Canterbury to Questions
Submitted by Senator Grassley
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Responses of Chuck Canterbury to Questions
Submitted by Senator Klobuchar
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Responses of Chuck Canterbury to Questions Submitted by Senator Vitter
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Responses of Darpana Sheth to Questions Submitted by Senator Grassley
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Responses of Darpana Sheth to Questions Submitted by Senator Vitter
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Responses of Russ Caswell to Questions Submitted by Senator Vitter
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