'Welcome to the Upside-Down World of Civil Forfeiture'


The Institute for Justice has agreed to help Russell and Pat Caswell resist a conspiracy by local police and the U.S. Justice Department to steal their motel in Tewksbury, Massachusetts. The police say the Motel Caswell, a mortgage-free family business valued at $1 million, is subject to civil forfeiture because during the last two decades a tiny fraction of its guests—less than 0.05 percent, I.J. says—have been arrested for drug offenses. The Caswells say they have reported illegal activity whenever they have discovered it and have always cooperated with the police. Yet because this is a civil forfeiture case, the government need not show that the Caswells themselves did anything wrong; it is their property that is accused of facilitating drug crimes, which is why the case is called United States v. 434 Main Street, Tewksbury, Mass. Massachusetts law allows forfeiture in cases like this only when the government can show that the owner "knew or should have known" his property was "used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances." The Tewksbury police avoided that burden of proof by pursuing forfeiture under federal law, which requires the Caswells to show they "did all that could reasonably be expected under the circumstances to terminate such use of the property." Another advantage of taking the case to the feds: The police department gets to keep 80 percent of the proceeds, whereas under state law it would get only 50 percent.

A new I.J. report highlights the hazards of such "equitable sharing" arrangements, which give law enforcement agencies a strong financial motive to swipe people's property even in states that have tried to curtail that pernicious incentive by diverting forfeiture money to other uses. In the Motel Caswell case, I.J. argues that such end runs around state reforms violate the 10th Amendment. Detailed background on the case here. I.J. has produced a video that concisely explains the issues at stake:

A 2010 I.J. report, Policing for Profit, showed that forfeiture abuses remain common despite state and federal reforms driven by highly publicized outrages. I.J. argues that the only truly effective way to protect innocent owners is to abolish civil forfeiture and require a criminal conviction before property can be taken.

Radley Balko reported on "The Forfeiture Racket" in the February 2010 issue of Reason. More on the subject here.