Organization: University of Illinois at Chicago
Date: Saturday, 22 Aug 1992 19:12:43 CDT
From: Mary Jacobs <U45301@uicvm.uic.edu>
Newsgroups: misc.legal
Subject: PRESUMED GUILTY: INNOCENT VICTIMS OF CURRENT WAR ON DRUGS POLICY

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Forwarded article form alt.politics.drugs below:

The Pittsburgh Press is one of the major newspapers of Pittsburgh.
They published a whole series of articles on forfeiture as a booklet;
this is one of them.  They send copies of the booklet at no charge,
but they are just about out of them.  They are happy to have people
make and distribute more copies of the booklet.

The Reagan/Bush Supreme Court has upheld this practice--which shows
that every one is in danger from a president who is against civil
liberties.


The Pittsburgh Press, Sunday, August 11, 1991
========================


                        P R E S U M E D     G U I L T Y
                      The law's Victims in the War on Drugs

It's a strange twist of justice in the land of freedom. A law designed
to give cops the right to confiscate and keep the luxurious possesions
of major drug dealers mostly ensnares the modest homes, cars and cash
of ordinary, law-abiding people. They step off a plane or answer their
front door and suddenly lose everything they've worked for. They are
not arrested or tried for any crime. But there is punishment, and it's
severe.

This six-day series chronicles a frightening turn in the war on drugs.
Ten months of research across the country reveals that seizure and
forfeiture, the legal weapons meant to eradicate the enemy, have done
enormous collateral damage to the innocent. The reporters reviewed
25,000 seizures made by the Drug Enforcement Administration. they
interviewed 1,600 prosecutors, defense lawyers, cops, federal agents,
and victims. They examined court documents from 510 cases. What they
found defines a new standard of justice in America: You are presumed
guilty.

==========================================================================


The main article appeared next to the above, also on the front page,
and later pages.


=====================================================

        Government seizures victimize innocent

By Andrew Schneider
and Mary Pat Flaherty

Part One: The overview

February 27, 1991.
        Willie Jones, a second-generation nursery man in his family's
Nashville business, bundles up money from last year's progits and
heads off to buy floweres and shrubs in Houston. He makes this trip
twice a year using cash, which the small growers prefer.

        But this time, as he waits at the american Airlines gate in Nashvill
Metro Airport, he's flanked by two police officers who escort him into
a small office, search him and seize the $9,600 he's carrying. A
ticket agent had alerted the officers that a large black man had paid
for his ticket in bills, unusual these days. Because of the cash,  and
the fact that he fit a "profile" of what drug dealers supposedly look
like, they believed he was buying or selling drugs.

        He's free to go, he's told. But they keep his money -- his
livelihood -- and give him a receipt in its place.

        No evidence of wrongdoing was ever produced. No charges were
ever filed. As far as anyone knows, Willie Jones neither uses drugs,
nor buys or sells them. He is a gardening contractor who bought an
airplane ticket. Who lost his hard-earned money to the cops. And can't
get it back.

        That same sday, an ocean away in Hawaii, federal drug agents
arrive at the Maui home of retirees Joseph and Frances Lopes and claim
it for the U.S. government.

        For 49 years, Lopes worked on a sugar plantation, living in
its camp housing before buying a modest home for himself, his wife,
and their adult, mentally disturbed son, Thomas.

        For a while, Thomas grew marijuana in the back yard -- and
threatened to kill himslef every time his parents tried to cut it
down. In 1987, the police caught Thomas, then 28. He pleaded guilty,
got probation for his first offense and was ordered to see s
psychologist once a week. He has, and never again has grown dope or
been arrested. The family thought this episode was behind them.

        But earlier this year, a detective scouring old arrest records
for forfeiture opportunities realized the Lopes house could be taken
away because they had admitted they knew about the marijuana.

        The police department stands to make a bundle. If the house is
sold, the police get the proceeds.

        Jones and the Lopes family are among the thousands of
Americans each year victimized by the federal seizure law -- a law
meant to curb drugs by causing financial hardship to dealers.

        A 10-month study by The Pittsburgh Press shows the law has run
amok. In their zeal to curb drugs and sometimes fill their coffers
with the proceeds of what they take, local cops, federal agents and
the courts have curbed innocent Americans' civil rights.  From Maine
to Hawaii, people who are never charged with a crime had cars, boats,
money and homes taken away.

        In fact, 80 percent of the people who lost property to the
federal government were never charged. And most of the seized items
weren't the luxurious playthings of drug barons, but modest homes and
simple cars and hard-earned savings of ordinary people.

        But those goods generated $2 billion for the police
departments that took them.

        The owners' only crimes in many of these cases: They "looked"
like drug dealers. They were black, Hispanic or flashily dressed.

        Others, like the Lopeses, have been connected to a crime by
circumstances beyond their control.

        Says Eric Sterling, who helped write the law a decade ago as a
lawyer on a congressional committee: "The innocent-until-proven-guilty
concept is gone out the window."

The law: Guilt doesn't matter

        Rooted in English common law, forfeiture has surfaced just twice in
the United States since colonial times.

        In 1862, Congress permitted the president to seize estates of
Confederate soldiers. Then, in 1970, it resurrected forfeiture for the
civil war on drugs with the passage of racketeering laws that targeted
the assets of criminals.

        In 1984 however, the nature of the law was radically changed
to allow government to take posession without first charging, let
alone convicting the owner. That was done in an effort to make it
easier to strike at the heart of the major drug dealers. Cops knew
that drug dealers consider prison time an inevitable cost of doing
business. It rarely deters them. Profits and playthings, though, are
their passions. Losing them hurts.

        And there was a bonus in the law. the proceeds would flow back
to law enforcement to finace more investigations. It was to be the
ultimate poetic justice, with criminals financing their own undoing.

        But eliminating the necessity of charging or proving a crime
has moved most of the actionm to civil court, where the government
accuses the item -- not the owner -- of being tainted by a crime.

        This oddity has court dockets looking like purchase orders:
United States of America vs. 9.6 acres of land and lake; U.S. vs. 667
bottles of wine. But it's more than just a labeling change. Because
money and property are at stake instead of life and liberty, the
constitutional safeguards in criminal proceedings do not apply.

        The result is that "jury trials can be refused; illegal
searches condoned; rules of evidence ignored," says Louisville, Ky.
defense lawyer Donald Heavrin. The "frenzied quest for cash," he says,
is "destroyin the judicial system."

        Every crime package passed since 1984 has expanded the uses of
forfeiture, and now there are more than 100 statutes in place at the
state and federal level. Not just for drug cases anymore, forfeiture
covers the likes of money laundering, fraud, gambling, importing
tainted meats and carrying intoxicants onto Indian land.

        The White House, Justice Department and Drug Enforcement
Administration say they've made the most of the expanded law in
getting the big-time criminals, and they boast of seizing mansions,
planes and millions in cash. But the Pittsburgh Press in just 10
months was able to document 510 current cases that involved innocent
people -- or those possesing a very small amount of drugs -- who lost
their possesions.

        And DEA's own database contadicts the official line. It showed
that big-ticket items -- valued at  more than $50,000 -- were only 17
percent of the total 25,297 items seized by DEA during the 18 months
that ended last December.

        "If you want to use that 'war on drugs' analogy, the
forfeiture is like giving the troops permission to loot," says Thomas
Lorenzi, president-elect of the Louisiana Association of Criminal
Defense Lawyers.

        The near-obsession with forfeiture continues without any proof
that it curbs drug crime -- its original target.

        "The reality is, it's very difficult to tell what the impact
of drug seizure is," says Stanley Morris, deputy director of the
federal drug czar's ofice.

Police forces keep the take

        The "loot" that's coming back to police forces all over tha
nation has redefined law-enforcement success. It now has a dollar sign
in front of it.

        For nearly eighteen months, undercover Arizona State Troopers
worked as drug couriers driving nearly 13 tons of marijuana from the
Mexican border to stash houses around Tucson. They hoped to catch the
Mexican suppliers and distributors on the American side before the
dope got on the streets.

        But they overestimated their ability to control the
distribution. Almost every ounce was sold the minute they droped it at
the houses.

        Even though the troopers were responsible for tons of drugs
getting loose in Tucson, the man who supervised the setup still
believes it was worthwhile. It was "a success from a cost-benefit
standpoint," says former assistant attorney-general John Davis. His
reasoning: It netted 20 arrests and at least $3 million for the state
forfeiture fund.

        "That kind of thinking is what frightens me," says Steve
Sherick. a Tucson attorney. "The government's thirst for dollars is
overcoming any long-range view of what it is supposed to be doing,
which is fighting crime."

        George Terwilliger III, associate deputy attorney general in
charge of the U.S. Justice Department's program emphasizes that
forfeiture does fight crime, and "we're not at all apologetic about
the fact that we do benefit (financially) from it."

        In fact, Terwilliger wrote about how the forfeiture program
financially benefits police departments in the 1991 Police Buyer's
Guide of Police Chief Magazine.

        Between 1986 and 1990, the U.S. Justice Department genertade
$1.5 billion from forfeiture and estimates that it will take in $500
million this year, five times the maount it collected in 1986.

        District attorney's offices throughout Pennsylvania handled
$4.5 million in forfeitures last year; Allegheny County (ED: Pgh is in
Allegheny County) , $218,000, and the city of Pittsburgh, $191,000 --
up from $9,000 four years ago.

        Forfeiture pads the smallest towns coffers. In Lexana, Kan, a
Kansas City suburb of 29,000, "we've got about $250,000 moving in
court right now," says narcotice detective Don Crohn.

        Despite the huge amounts flowing to police departments, the
are few public accounting procedures. Police who get a cut of the
federal forfeiture funds must sign a form saying merely the will use
it for "law enforcement purposes."

        To Philadelphia police that meant new air conditioning. In
Warren County, N.J., it meant use of a forfeited yellow Corvette for
the chief assistant prosecutor.


{At this point nt the article there is a picture of three people  in
an empty apartment, with the following caption:

Judy Mulford, 31, and her 13-year old twins, Chris, left, and Jason,
are down to essentials in their Lake Park, Fla., home, which the
government took in 1989 after claiming her husband, Joseph, stored
cocaine there. Neither parent has been criminally charge, but in April
a forfeiture jury said Mrs. Mulford must forfeit the house she bought
herself with an insurance settlement. The Mulfords have divorced, and
she has sold most of her belongings to cover legal bills. She's asked
for a new trial and lives in the near-empty house pending a decision. }


'Looking' like a criminal


        Ethel Hylton of New York City has yet to regain her financial
independence after losing $39,110 in a search nearly three years ago
in Hobby Airport in Houston.

        Shortly after she arrived from New York, a Houston officer and
Drug Enforcement Administration agent stopped the 46-year-old woman in
the baggage area and told her she was under arrest because a drug dog
had scratched at her luggage. The dog wasn't with them, and when Miss
Hylton asked to see it, the officers refused to bring it out.

        The agents searched her bags, and ordered a strip search of
Miss Hylton, but found no contraband.

        In her purse they found the cash Miss Hylton carried because
she planned to buy a house to escape the New York winters which
exasperated her diabetes. It was the settlemet from an insurance
claim, and her life's savings, gatherd through more than 20 years of
work as a hotle housekeeper and hospital night janitor.

        The police seized all but $10 of the cash and sent Miss Hylton
on her way, keeping the money bacause of its alleged drug connection.
But they never charged her with a crime.

        The Pittsburgh Press verified her jobs, reviewed her bank
statements and substantiated her claim she had $18,000 from an
insurance settlement. It also found no criminal record for her in New
York City.

        With the mix of outrage and resignation voiced by other
victims of searches, she says: "The money they took was mine. I'm
allowed to have it. I earned it."

        Miss Hylton bacame a U.S. citizen six years ago. She asks,
"Why did they stop me? Is it bacause I'm black or bacause I'm
Jamaican?"

        Probably, both -- although Houston police haven't said.

        Drug teams interviewed in dozens of airports, train stations
and bus terminals and along other major highways repeatedly said they
didn't stop travellers based on race. But a Pittsburgh Press
examination of 121 travellers' cases in which police found no dope,
made no arrest, but seized money anyway showed that 77 percent of the
people stopped were black, Hispanc, or Asian.

        In April, 1989, deputies from Jefferson Davis Parish,
Louisiana, seized $23,000 from Johnny Sotello, a Mexican-American
whose truck overheated on a highway.

        They offered help, he accepted. They asked to search his
truch. He agreed. They asked if he was carrying cash. He said he was
because he was scouting heavy equipment auctions.

        They then pulled a door panel from the truck, said the space
behind it could have hidden drugs, and seized the money and the truck,
court records show. Police did not arrest Sotello but told him he
would have to go to court to recover his property.

        Sotello sent auctioneer's receipts to police which showed he
was a licensed buyer. the sherriff offered to settle the case, and
with his legal bills mounting after two years, Sotello accepted. In a
deal cut last March, he got his truck, but only half his money. The
cops kept $11,500.

        i was more afraid of the banks than anything -- that's one
reason I carry cash," says Sotello. "But a lot of places won't take
checks, only cash, or cashier's checks for the exact amount. I never
heard of anybody saying you couldn't carry cash."

        Affadavits show the same deputy who stopped Sotello routinely
stopped the cars or balck and Hispanic drivers, exacting "donations"
from some.

        After another of the deputy's stops, two black men from
Atlanta handed over $1,000 for a "drug fund" after being detained for
hours, according to a hand-written receipt reviewed by the Pittsburgh
Press.
        The driver got a ticket for "following to (sic) close." Back
home, they got a lawyer.

        Their attorney, in a letter to the Sherrif's department, said
deputies had made the men "fear for their safety, and in direct
exploitation of tha fear a purported donation of $1000 was
extracted..."

        If they "were kind enough to give the money to the sherrif's
office," the letter said, "hen you can be kind enough to give it
back." If they gave the money "under other circumstances, then give
the money back so we can avoid litigation."

        Six days later, the sherrif's department mailed the men a
$1,000 check.

        Last year, the 72 deputies of Jefferson Davis Parish led the
state in forfeitures, gatering $1 million -- more than their
colleagues in New Orleans, a city 17 times larger than the parish.

        Like most states, Louisiana returns the money to law
enforcement agencies, but it has one of the more unusual
distributions:60 percent goes to the police bringing a case, 20
percent to the district attorney's office prosecuting it and 20
percent to the court fund of the judge signing the forfeiture order.

        "The highway stops aren't much different from a smash-and-grab
ring," says Lorenzi, of the Louisiana Defense Lawyers association.

Paying for your innocence

        The Justice Department's Terwilliger says that in some cases
"dumb judgement" may ocaasionally cause problems, but he believes
there is an adequate solution. "That's why we have courts."

        But the notion that courts are a safeguard for citizens
wrongly accused "is way off," says Tjomas Kerner, a forfeiture lawyer
in Boston. "Compared to forfeiture, David and Goliath was a fair
fight."

        Starting from the moment that the government serves notice
that it intends to take an item, until any court challenge is
completed, "the government gets all the breaks," says Kerner.

        The government need only show probable cause for a seizure, a
standard no greater than what is needed to get a search warrant. The
lower standard means the government can take a home without any more
evidence than it normally needs to tkae a look inside.

        Clients who challenge the government, says attorney Edward
Hinson of Charlotte, N.C., "have the choice of fighting the full
resources of the U.S. treasury or caving in."

        Barry Colin caved in.

        Kolin watched Portland, Ore., police padlock the doors of
Harvey's, his bar and restaurant for bookmaking on March 2.

        Earlier that day, eight police officers and Amy Holmes Hehn,
the Multnomah County deputy district attorney, had swept into the bar,
shooed out waitresses and customers and arrested Mike Kolin, Barry's
brother and bartender, on suspicion of bookmaking.

        Nothing in the police documents mentioned Barry Kolin, and so
the 40-year-old was stunned when authorities took his business, saying
they believe he knew about the betting. He denied it.

        Hehn concedes she did not have the evidence to press a
criminal case against Barry Kolin, "so we seized the business
civilly."

        During a recess in a hearing on the seizures weeks later, "the
deputy DA says if I paid them $30,000 I could open up again," Kolin
recalls. When the deal dropped to $10,000, Kolin took it.

        Kolin's lawyer, Jenny Cooke, calls the seizure "extortion."
She says: "There is no difference between what the police did to Barry
Kolin or what Al Capone did in Chicago when he walked in and said,
'This is a nice little bar and it's mine.' the only difference is
today they call this civil forfeiture."

Minor crimes, major penalties

        Forfeiture's tremendous clout helps make it "one of the most
effective tools that we have," says Terwilliger.

        the clout, though, puts property owners at risk of losing more
under forfeiture that they would in a criminal case under the same
circumstances.

        Criminal charges in federal and many state courts carry
maximum sentences. But there's no dollar cap on forfeiture, leaving
citizens open to punishment that far exceeds the crime.

        Robert Brewer of Irwin, Idaho, is dying of prostate cancer,
and uses marijuana to ease the pain and nausea that comes with
radiation treatments.

        Last Oct. 10, a dozen deputies and Idaho tax agents walked
into the Brewer's living room with guns drawn and said they had a
warrant to search.

        The Brewers, Robert, 61, and Bonita, 44, both retired form the
postal service, moved from Kansas City, Mo., to the tranquil, wooded
valley of Irwin in 1989. Six months later, he was diagnosed.

        According to police reports, and informant told authorities
Brewer ran a major marijuana operation.

        The drug SWAT team found eight plants in the basement under a
grow light and a half-pound of marijuana. The Brewers were charged
with two felony narcotics counts and two charges for failing to buy
state tax stamps for the dope.

        "I didn't like the idea of the marijuana, but it was the only
thing that controlled his pain," Mrs. Brewer says.

        The government seized the couples five-year-old Ford van that
allowed him to lie down during his twice-a-month trips for cancer
treatment at a Salt Lake City hospital, 270 miles away.

        Now they must go by car.

        "That's a long painful ride for him. His testicles would
sometimes swell up to the size of cantaloupes, and he had to lie down
because of the pain. He needed that van, and the government took it,"
Mrs. Brewer says.

        "It looks like the government can punish people any way it
sees fit."

        The Brewers know nothing about the informant who turned them
in, but informants play a big role in forfeiture. Many of them are
paid, targeting property in return for a cut of anything that is
taken.

        The Justice Department's asset forfeiture fund paid $24
million to informants in 1990 and has $22 million allocated this year.

        Private citizens who snith for a fee are everywhere. Some
airline counter clerks receive cash awards for alerting drug agents to
"suspicious" travellers. The practice netted Melissa Furtner, a
Continental Airlines clerk in Denver, at least $5,800 between 1989 and
1990, photocopies of checks show.

        Increased surveillance, recruitment of citizen-cops, and
expantion of forfeiture sweeps are all part of a take-now,
litigate-later syndrome that builds prosecutors careers, says a former
federal prosecutor.

        "Fedreal law enforcement people are the most ambitious I've
ever met, and to get ahead they need visible results. Visible results
are convictions, and, now, forfeitures," says Don Lewis of Meadville,
Crawford County. (ED: a Pa county north of Pgn by two counties.)

        Lewis spent 17 years as a prosecutor, serving as an assistant
U.S. attorney in Tampa as recently as 1988. He left the Tampa Job --
and became a defense lawyer -- when "I found myslef tempted to do
things I wouldn't have thought about doing years ago."

        Terwilliger insists U.S. attorneys would never be evaluated on
"something as unprofessional as dollars."

        Which is not to say Justice doesn't watch the bottom line.

        Cary Copeland, director of the department' Executive Office
for Asset Forfeiture, says the tried to "squeeze the pipeline" in 1990
when the amount forfeited lagged behind Justice's budget projections.

        He said this was done by speeding up the process, not by doing
"whole lot of seizures."

Ending the Abuse

        While defense lawyers talk of reforming the law, agencies that
initiate forfeiture scarcely talk at all.

        DEA headquarters makes a spectacle of busts like the seizure
of fraternity houses at the University of Virginia in March. But it
refuses to supply detailed information on the small cases that account
for most of its activity.

        Local prosecutors are just as tight-lipped.

        Thomas Corbett, U.S. Attorney for Western Pennsylvania, seals
court documents on forfeitures because "there are just some things I
don't want to publicize. the person whose assets we seize will
eventually know, and who else has to?"

        Although some investigations need to be protected, there is an
"inappropriate secrecy" spreading throughout the country, says Jeffrey
Weiner, president-elcet of the 25,000 member National Association of
Criminal Defense Lawyers.

        "The Justice Department boasts of the few big fish they catch.
But they throw a cloak of secrecy over the information on how many
innocent people are getting swept up in the same seizure net, so no
one can see the enormity of the atrocity."

        Terwilliger says the net catches the right people: "bad guys"
as he calls them.

        But a 1990 Justice report on drug task forces in 15 states
found they stayed away from the in-depth financial investigations
needed to cripple major traffickers. Instead, "they're going for the
easy stuff," says James "Chip" Coldren, Jr., executive director of the
Bereau of Justice Assistance, a research arm of the federal Justice
Department.

        Lawyers who say the law needs to be changed start with the
basics: The government shouldn't be allowed to take property untial
after it proves the owner guilty of a crime.

        But they go on to list other improvements, including having
police abide by their state laws, which often don't give police as
much lattitude as the federal law. Now they can use federal courts to
circumvent the state.

        Tracy Thomas is caught in that very bind.

        A jurisprudence ersion of the shell game hides roughly $13,000
taken from Thomas, a resident of Chester, near Philadelphia.

        Thomas was visiting in his godson's home on Memorial Day,
1990, when local police entered looking for drugs allegedly sold by
the godson. They found none and didn't file a criminal charge in the
incident. But they seized $13,000 from Thomas, who works as a
$70,000-a-year engineer, says his attorney, Clinton Johnson.

        The cash was left over from a Sherrif's sale he'd attended a
few days before, court records show. the sale required cash -- much
like the government's own auctions.

        Duting a hearing over the seized money, Thomas presented a
withdrawal slip showing he'd removed money from his credit union
shortly before the trip and a receipt showing how much he had paid for
the property he'd bought at the sale. The balance was $13,000.

        On June 22, 1990, a state judge ordered Chester police to
return Thomas' cash.

        They haven't.

        Just before the court order was issued, the police turned over
the cash to the DEA for prcessing as a federal case, forcing Thomas to
fight another level of government. Thomas isd now suing the Chester
police, the arresting officer, and the DEA.

        "When DEA took over that money, what they in effect told a
local police department is that it's OK to break the law," says
Clinton Johnson, attorney for Thomas.

        Police manipulate the courts not only to make it harder on
owners to recover property, but to make it easier for police to get a
hefty share of any fofeited goods. In federal court, local police are
guaranteed up to 80 percent of the take -- a percentage that may be
more than they'd recieve under state law.

        Pennsylvania's leading police agency -- the state police --
and the state's lead prosecutor -- the Attorney General -- bickered
for two years over state police taking cases to federal court, an
arrangement that cut the Attorney General out of the sharing.

        The two state agencies now have a written agreement on how to
divy the take.

        The same debate is heard around the nation.

        The hallways outside Cleveland courtrooms ring with arguments
over who will get what, says Jay Milano, a Cleveland criminal defense
attorney.

        "It's causing a feeding frenzy."

==================================================================


Article: 766 of talk.politics.drugs