February 10, 2001
The New Congress Convenes, The Old Issues Return

by Joseph P. Tartaro
Executive Editor

The 107th Congress convened on Jan. 3, shrouded in uncertainty because of the close elections for the Senate and House and the recount-plagued presidential election. The Democrats were the majority for 17 days until President Bush and Vice President Cheney were sworn in on Jan. 20.

From a partisan standpoint, the Senate is now controlled by the Republicans 51-50, counting Cheney’s vote with the GOP. All of the Senate committees are chaired by Republicans, with Democrats and Republicans evenly split on each of the panels.

The situation in the House is a little more clearly in control of the Republicans, but by a lesser margin than in the previous Congress.

Surrounding the shroud of uncertainty is the fog of compromise. Everybody talks compromises, which should be a signal to partisans of both the left and right to watch this Congress carefully. When politicians talk glowingly of compromise, it is a signal that some faction may soon be very unhappy with a product of the lawmaking process.

Certainties
There is at least one hitching post in all of this political ambiguity: the old issues will be raised anew. All of the gun-related proposals of prior years and Congresses have been or will be filed again. Some will get committee hearings, some will come up for votes, while others will continue to gather dust in the congressional hopper.

But some of the old issues that can affect gunowners and citizens at large are even more likely to gain attention. Among those expected to inspire renewed debate are the victim’s rights amendment, asset forfeiture, criminal justice-related issues, prosecutorial rules and privacy.


While public policy debates over education, tax cuts, defense priorities, abortion and campaign reform get a lot of attention from the general media, most issues that bear directly on civil liberties get scant attention—and even less detailed exploration.

I have addressed questions such as victim’s rights, forfeiture and privacy in this column before. Usually I have discussed them because they had a direct—but often hidden—connection to the individual right to keep and bear arms.

As much as six years ago, I explored bi-partisan proposals to reform the asset forfeiture law which have been much abused by federal, state and local arms of government.

In 1995, some heavyweights of both major parties on the House Judiciary Committee—Reps. Henry Hyde (R-IL); John Conyers (D-MI), Bob Barr (R-GA) and Barney Frank (D-MA)—launched an effort to fix the asset forfeiture law that was originally passed during the war on drugs/crime to prevent illegal drug traffickers from using or keeping their ill-gotten gains during criminal prosecutions by permitting seizure of all their assets.

A fundamental problem with the asset forfeiture law—then and now—is the special tilting of the scales of justice toward government prosecutors by means of special rules of evidence, discovery and court procedure. Assets are automatically seized even before the guilt of the accused or a related drug nexus is proven. While this might be an inconvenience and even a serious blow to some drug kingpins, it can be devastating to small-time violators and particularly those later proven innocent of charges, or against whom charges are dropped. Once assets are seized, getting them back is pretty near impossible.

Another major problem of the law is that once seized, the law allows a split of the take between federal, state and local authorities. For many local police and sheriff’s departments, the asset forfeiture law provides a budget windfall. Local police agencies suddenly discover “found money” for all kinds of things that they couldn’t afford with the regular budgets approved by local lawmakers.

Perhaps the biggest problem the asset forfeiture law poses for the average citizen is that it facilitates a civil rights abuse linked to so-called profiling of suspects. Thus, the mere possession of large amounts of cash, particularly by African-American, Latino and other minority community members, is viewed as a suspicion of drug dealing, and many innocent people were arrested and their assets seized under color of this law. Indeed, there have been reports of anyone who paid cash for train tickets, especially at the last minute, being immediately subject to investigation by law enforcement agents while in transit on that ticket.

Newspaper Article
If you think some of this is rehashed history, let me quote some passages from a Jan. 15 article by Karen Dillon in The Kansas City Star.

Dillon’s article clearly shows why asset forfeiture is still a hot legislative issue. Her report is one of very few in the general media that zero in on real civil issues.

“Just a year ago, federal agencies were helping local police keep millions of dollars in drug money they seized, with few questions asked,” Dillon began. “Outside of law enforcement circles, few people even knew it was happening.”

But now, she said, things have changed, with reform efforts that became widespread last year, and the promise more will be done this year.

“It has become a hot issue finally,” said Brenda Grantland, a California lawyer and president of Forfeiture Endangers American Rights, a non-profit group seeking to reform laws. “It has taken us many, many years. The momentum has changed, and it’s in our favor.”

For more than a decade, state and local law enforcement agencies have found a way to keep drug money they seize, even when state laws prohibit that.

Police seize drug money, but instead of going through state court, as most of their laws require, they hand it off to a federal agency. The agency keeps part of the money and returns the rest to the police department.

The Kansas City Star checked more than two dozen states earlier last year and found that police in every one of them had used the federal government to circumvent their own laws. Some believe the police arrangement with federal agencies gives police a financial incentive to seize drug money, which can lead to abuses such as racial profiling and illegal searches.

In two states voters passed ballot initiatives in November prohibiting police from keeping cash and property they seized. An initiative was attempted in a third state but failed.

At least two other states attempted and failed to enact reform bills, and both appear ready to try again this year. Lawmakers in other states also are reviewing forfeiture laws.

A reform bill will be introduced in Congress, which last year passed a watered-down forfeiture bill that failed to address the police handoffs, Dillon reported.

President-elect George W. Bush plans to appoint a national commission to review the forfeiture issue and several other aspects of the criminal justice system.

The US Supreme Court recently outlawed roadblocks set up to check for drugs, which Grantland described as “forfeiture traps.”

California, Missouri and Kansas are among the states that are most likely to address the forfeiture question this year. In New Mexico, a drug policy committee appointed by Gov. Gary Johnson has recommended forfeiture reforms.

In Oregon and Utah, lawmakers are feeling the angst of law enforcement agencies almost two months after voters passed forfeiture reform initiatives.

Among other provisions, the initiatives prohibit police from unilaterally transferring money to the federal government.

The US Department of Justice also is studying the initiative to determine how it can continue the arrangement agencies have with state and local police.

In the next few months Bush is expected to appoint a national commission to examine law enforcement concerns, including the forfeiture controversy, police brutality and the high number of first-time offenders imprisoned for using drugs, a spokesman said.