By Michael W. Lynch
Date: Tues, May 4, 1999 8:31:03 AM
Subj: The Affable Despot
Jaws dropped at the Cato Institute yesterday. The amazed were hunkered down in the subterranean F.A. Hayek Auditorium for a morning conference on civil asset forfeiture reform. House Judiciary Committee Chairman Henry Hyde (R-Ill.) was on hand to outline the provisions of his forfeiture reform bill, which he had just introduced, and to speak more generally to the injustices of seizing people's property without a trial. Hyde has put together a bipartisan coalition that includes Reps. Bob Barr (R-Ga.), John Conyers (D-Mich.), and Barney Frank (D-Mass.) to battle Clinton's Department of Justice and the legion of state and local law enforcement organizations that get a cut of the more than $338 million the government seizes from Americans each year. But it wasn't Hyde who amazed us.
It was Gordon Kromberg, the assistant U.S. attorney for the Eastern District of Virginia, one of two Department of Justice representatives present. By the time Kromberg made it to the microphone, Cato's Roger Pilon, Hyde, and Bo Edwards, an attorney who represents people whose property has been stolen by government agents, had already held forth. They'd explained the system: that property can be confiscated by government agents based on nothing more than probable cause; that the accused individual is considered guilty and must prove otherwise to get his property back; that law enforcement agencies get to keep and use whatever they confiscate; and that this system, not surprisingly, often abuses innocents, especially minorities who, we all know, are more likely to fit law enforcement's definition of probable cause.
Kromberg, who'd grinned through a glass of water for the entire presentation, knew he had a tough case to make. "Thanks for having me as the designated pi�ata at this party," he opened wryly.
He then proceeded to a two-pronged line of argument. First, he denied there was a problem. Claiming the examples Pilon, Hyde, and Edwards cited were dated--most went back to the early '90s--he said the government had reformed itself. It had learned how to handle its new tool, which, after all, was put to serious use for the first time in the late 1980s. Playing to the anti-government sentiment of the Cato crowd, this crafty arm of Leviathan claimed Hyde's efforts were typical of our bumbling government. Mocked Kromberg, "Let's go reform what used to be." As proof of good behavior, Kromberg said he hadn't confiscated a car in over a year.
The shocking part came later. Explaining the two types of asset forfeiture--criminal, which emerges from a criminal trial and conviction, and civil, which can transpire absent even an arrest of the property owner, let alone a conviction. Kromberg defended the latter in this way: Prosecutors are busy. Way too many bad guys are running around for them to help catch with stings and convict in court. Some outlaws are even pretty smart. He admitted that he currently had 10 money laundering cases in which he couldn't figure out how the people were washing the dough. But still, he knew these people were guilty and was certain they needed to be punished. Should we let these people get away, he asked, before answering in an illuminating way: Not if we can punish them through other means.
There you have it: Kromberg came clean, to employ a law enforcement clich�. He bluntly declared that people like him ought to be able to punish individuals they believe are guilty, even if they can't prove that guilt in a court of law. In essence, this affable despot sees nothing wrong with prosecutors serving as judges and juries. Different levels of punitive action deserve different levels of protection, he said. If you're not infringing on liberty, he said, punishment should require a lower standard.
Now two things are worth mentioning. I would argue that confiscating someone's car, their boat, or a large sum of money is in fact depriving them of liberty--at least the liberty to drive around, go water skiing, and buy stuff. It's interesting that those in our government doing the confiscating don't agree.
Perhaps more important, however, is that the "lower standard" Kromberg invokes, probable cause, is barely a standard at all these days. In practice, this means a government agent can seize any money you may be carrying if a drug dog detects a bit of contraband on it. Since most of the U.S. money supply is contaminated, the government can basically empty out your wallet any time it wants. It is up to you, an American citizen who hitherto thought you had constitutional rights, to convince the government, either in an administrative procedure or later in court, at great expense and effort, that the money was in fact not the result of a drug transaction.
Kromberg sees nothing wrong with the probable cause standard. In fact, he loves it. This low standard, he explained, allows the government to rely on hearsay to confiscate property. If you tighten this standard, according to Kromberg, the government would have to go to trial--actually march into a real court where even people who aren't government agents have rights --to get its hands on someone's property. That's what's wrong with Hyde's bill. Said Kromberg: "When you want to change the burden of proof, you're cutting the throat, eviscerating asset forfeiture as a tool."
Precisely, Mr. Prosecutor.
By Michael W. Lynch
Date: Tues, May 11, 1999 11:36:26 AM
Subj: Summit View
Yesterday was "Save the Children from Violence and Teach 'Em Responsibility Day" in Washington. Everyone was in on the festivities. The White House hosted a summit to address the issue. Clinton neglected to invite the National Rifle Association, prompting it to hold a press conference at the National Press Club. Republican presidential hopeful Gary Bauer felt the need for his own press conference in an adjacent room, where he screened segments from violent movies and video games. And on my way to the Press Club, a woman wearing a black trench coat and a black stocking hat and carrying a sign that said, "Clinton: Trench Coat Role Model," stopped in front of the White House to hand me some 19th-century peacenik poetry.
Washington is responding to this "crisis" as it does to all others--as a news hook to push prepackaged policy. Some are using the tragedy to argue for more federal control, others are calling for the feds to more forcefully exert the immense power they already enjoy, and still others are blaming private third parties and issuing thinly veiled calls for censorship.
I figured I'd spend a day listening to the blather. The NRA conference was packed --too many cameras to count and a podium of microphones that must have numbered in the 20s. Wayne LaPierre, the NRA's executive vice president, was first up. After assuring us that the NRA had a core interest in reducing violence, he said he felt compelled to read a statement. The perspiring LaPierre opened with an extended metaphor of policy making as theater, politicians working up the audience with staged events and final passage of some new federal law as the closing. The politicians, charged LaPierre, know the new laws won't do a darned thing to solve any problem, but that's not the point: Their policy stance polls well.