Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed not at waitresses and janitors but at organized crime bosses and drug lords. Lawenforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime. Even then, forfeiture remained an infrequent resort until 1984, when Congress passed the Comprehensive Crime Control Act. It established a special fond that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws.
Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.) The strategy helped reconcile President Reagan’s call for government action in fighting crime with his call to reduce public spending. In 1989, Attorney General Richard Thornburgh boasted, «It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation».
There were high-profile success stories. The federal government seized a four-hundred-acre Montana ranch tied to the Colombian drug kingpin Pablo Escobar, and laid claim to the bank accounts of assorted Wall Street con men. But tales of abuse also emerged. In 1992, a California drug task force shot and killed a reclusive millionaire named Donald Scott during a raid of his Malibu ranch; by some accounts, police were searching for marijuana plants (none were found) as a pretext to seize Scott’s two hundred acre property. «Unfortunately, I think I can say that our civil asset forfeiture laws are being used in terribly unjust ways», Heniy Hyde, the Republican chairman of the House Judiciary Committee, declared in 1997, «and are depriving innocent citizens of their property with nothing that can be called due process». Three years later, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA), requiring that federal prosecutors prove «a substantial connection between the property and the offense», and allowing people who can prove themselves «innocent owners» to keep their property.
But civil-forfeiture statutes continued to proliferate, and at the state and local level controls have often been lax. Many states, facing fiscal crises, have expanded the reach of their forfeiture statutes, and made it easier for law enforcement to use the revenue however they see fit. In some Texas counties, nearly forty per cent of police budgets comes from forfeiture. (Only one state, North Carolina, bans the practice, requiring a criminal conviction before a person’s property can be seized.) Often, it’s hard for people to fight back. They are too poor; their immigration status is in question; they just can’t sustain the logistical burden of taking on unyielding bureaucracies.
Victor Ramos Guzman, a Pentecostal Church secretary from El Salvador, who lives in the U.S. under temporary protected status, is typical in all these respects. A year and a half ago, he and his brother in law were driving along Interstate 95 near Emporia, Virginia, en route, documents show, to buy a parcel of land for their church. When a state trooper pulled them over for speeding, Guzman and his brother-in-law disclosed that they were carrying twenty eight thousand five hundred dollars in parishioners’ donations. Although the trooper found no contraband, he seized the cash. By reporting the case to Immigration and Customs Enforcement (Guzman was in the country legally, but he spoke little English), the state police could gain up to eighty per cent of the seizure through the federal Equitable Sharing program.
«We could prove beyond a reasonable doubt that the money was church money from parishioners’ donations», David Smith, who was a deputy chief of the Justice Department’s Asset Forfeiture Office during the Reagan Administration and now defends the policy’s targets pro bono, told me last January. Only after he intervened were the funds returned. «But these were people who didn’t have the means to fight back. They weren’t well-to-do. They didn’t know any senators or congressmen, they weren’t citizens. They had no voice.» For the people who hoped to take on the Tenaha operation, the challenge was to bring claims like these into public view.