Notes and References

  1. Henry Hyde, Forfeiting Our Property Rights 6 (1995)(citing Andrew Schneider and Mary Pat Flaherty, Presumed Guilty: The Law’s Victims in the War on Drugs, Pittsburgh Press, Aug. 11-Sept. 16 (series of installments on the drug war)).

  2. James Bovard, Seizure Fever: The War on Property Rights, The Freeman, Jan. 1996, at 6.

  3. Brief of the Institute for Justice in U.S. v. James Daniel Good Real Property, et al., No. 92-1180.

  4. For an interesting array of some of the most egregious horror stories about victims of forfeiture laws, see Bovard, supra note 2, at 8-13; R.W. Bradford, Today’s War on Property, The Freeman, Feb. 1997, at 93.

  5. See Noah Eliezer Yanice, Court Abdicates Its Role Against Tyranny, the Detroit News, April 11, 1996; Aaron Epstein, Michigan Case Sparks Supreme Court Debate, Detroit Free Press, Nov. 30, 1995, at 5A; Forfeiting Innocence, Detroit News, Dec. 4, 1996, at 6A.

  6. Forfeiting Innocence, Detroit News, Dec. 4, 1995, at 6A.

  7. Michigan v. Bennis, 447 Mich. 719, 527 N.W.2d 483 (1994).

  8. Bennis v. Michigan, 116 S.Ct. 994, 134 L.Ed.2d 68, 64 U.S.L.W. 4124 (1996).

  9. For the account of the Puertas story on which this account is based, see L. L. Brasher, Family’s Assets at Center of Fierce Forfeiture Battle, Detroit Free Press, June 1, 1998, at 1A.

  10. Id. at 9A.

  11. Id.

  12. Investigative Reports: Seized by the Law (A&E television broadcast, 1995).

  13. Jarret B. Wollstein, The Government’s War on Property, The Freeman, July 1993, at 247. The evidentiary value of dog sniffs has also been questioned by at least one United States District Court. In United States v. $80,760.00, the court noted that, "there is some indication that residue from narcotics contaminates as much as 96% of the currency currently in circulation," and thus that courts should "seriously question the value of a dog’s alert without other persuasive evidence." 781 F.Supp. 462, 475-76, n. 32 (N.D. Tex. 1991). Even where courts question the validity of a dog sniff, however, because the federal probable cause standard is an extremely low threshold, observance of "suspicious" behavior can often constitute that additional "persuasive evidence."

  14. See Dirty Money, U.S. Banker, Oct. 1989, at 10 (discussing the study of Lee Hearn, Chief Toxicologist for Florida’s Dade County Medical Examiner’s Office, showing that 97% of bills from around the country tested positive for cocaine and noting that banks play a role in spreading the drug traces when tellers count money, rubbing bills against one another).

  15. Leonard W. Levy, A License to Steal: The Forfeiture of Property 136 (1996).

  16. Drug Laws Work Against Innocent, Detroit News, Oct. 24, 1989.

  17. Id.

  18. U.S. v. $13,715.00, 736 F.Supp. 135 (E.D. Mich. 1990). Cf. U.S. v. $53,082.00, 985 F.2d 245 (6th Cir. 1993)(opinion by Suhrheinrich, J.)(District court ruling by Gadola, J.)

  19. U.S. v. $13,715.00, 736 F.Supp. 135 (E.D. Mich. 1990).

  20. Aaron Epstein, "Zero Tolerance" Backlash Brings Fury, Threatened Suit, Miami Herald, May 25, 1988, at D8.

  21. Feds Sell Seized Assets, But Officials Not Charged, Banking Attorney, June 27, 1994, at 6. Though the seizures largely went unchallenged by the Fouches, this is not an implicit admission of guilt. First, many people feel a sense of impotence in their individual ability to fight the state (the "You can’t fight city hall" mentality). Second, as will be discussed in later sections of this study, the attorney fees, court costs, and bond requirements involved in most challenges make it difficult for one to challenge a seizure (especially if all of his assets have been taken by the government). Finally, the forfeiture statutes require a very low threshold showing of only probable cause to allow the government to seize and keep someone’s property. Thus, the unlikelihood of success may have also been a reason for the Fouches’ decision not to challenge the seizures. Furthermore, it is the American legal tradition to adopt a presumption of innocence toward the accused and not to impose punishment until the state has fulfilled its obligation to show guilt beyond a reasonable doubt. Forfeitures of this kind ignore such principles and responsibilities.

  22. Friends back pot grower who tried to take his life, Saginaw News (Saginaw, Mich.), Feb. 28, 1994, at A6; In ‘pot’ trouble, man burned house, shot himself, Midland Daily News (Midland, Mich.), Feb. 28, 1994, at A8.

  23. In re Forfeiture of $1,159,420, 194 Mich.App. 134, 486 N.W.2d 326 (1992). See also People v. One 1986 Mercedes Benz (Lawyer’s Weekly No. 17168, 1994)(reported in Michigan Lawyer’s Weekly, Aug. 29, 1994, at 23)(finding that $17,000 in a car, a positive dog sniff on the cash, and a digital scale in the car, constituted sufficient evidence to show a substantial connection between the automobile and drug trafficking thus granting a forfeiture order against the car).

  24. 194 Mich.App. 134, 153, 486 N.W.2d 326, 336.

  25. 194 Mich. App. 134, 157, 486 N.W.2d 326, 338 (Doctoroff, J., dissenting).

  26. U.S. v. $26,284.00, 781 F.Supp. 1236 (E.D. Mich. 1992).

  27. Drug Laws Work Against Innocent, Detroit News, October 24, 1989.

  28. Tom Flook, Police Documents Show Most Property Seizures in Michigan Resemble Curbside Shakedowns, F.E.A.R. Chron., Nov. 1993, at 3,9 (F.E.A.R., an acronym for "Forfeiture Endangers American Rights," is a California-based organization. FEAR’s state coordinator in Michigan is Tom Flook, who can be contacted via the internet at "".).

  29. Hyde, supra note 1, at 32.

  30. U.S. Const., Amendment V (emphasis added). Though Amendment V was originally intended to limit only federal power, Amendment XIV applies this due process requirement upon the states ("[N]or shall any State deprive any person of life, liberty, or property, without due process of law") and the Fifth Amendment takings clause has been incorporated through the Fourteenth Amendment to be applicable against the States. See Chicago Burlington & Quincy R.R. v. Chicago, 166 U.S. 226 (1896). Furthermore, the Michigan Constitution has textually similar provisions guarding against state action. Mich. Const., art. I, 17 ("No person shall . . . be deprived of life, liberty or property, without due process of law."); Mich. Const., art. X, 2 ("Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record."). For a brief annotated text of the Michigan Constitution, see Susan P. Fino, The Michigan State Constitution: A Reference Guide (1996).

  31. James Madison, 14 The Papers of James Madison 266 (Rutland et al. eds, 1983)(citing an essay entitled Property, Nat’l Gazette, March 27, 1792).

  32. John Locke, Second Treatise of Government 75 (Cox ed., 1982).

  33. See Donald J. Kochan, Reforming the Law of Takings in Michigan, Mackinac Center for Public Policy (April 1996).

  34. See United States v. Carolene Products Co., 304 U.S. 144, note 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)(holding that regulatory legislation affecting commercial transactions need only rest upon some rational basis in order to withstand constitutional review). In Michigan, the same type of standard with strong deference to the legislature has been applied. See, e.g., Blue Cross and Blue Shield of Michigan v. Governor, 422 Mich. 1, 367 N.W.2d 1 (1985); Romein v. General Motors, 436 Mich. 515, 462 N.W.2d 555 (1990).

  35. Madison, supra note 31; See also Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972)(language stating that, "Property does not have rights. People have rights. The right to enjoy property without lawful deprivation . . . is in truth a ’personal’ right. . . . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized." The statement that property does not have rights, though intuitively true, has been rejected by the courts in favor of a legal fiction which allows the government to seize a piece of property and thereby avoid complying with the due process protections that can only be claimed by people. See discussion of due process, infra.

  36. United States v. Bajakajian, 1998 WL 323512 (U.S.).

  37. Bennis v. Michigan, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996).

  38. United States v. Ursery, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). See also Court Limits Legal Help, OK’s Seizures, Chattanooga Times, June 25, 1996, at A5 (discussing Ursery); Forfeiture; Personal Property-Double Jeopardy, Michigan Lawyer’s Weekly, October 5, 1995, at 10 (discussing Fanny v. United States, opinion from the U.S. District Court in the Eastern District holding that jeopardy doesn’t attach to forfeiture proceedings which are remedial and not punitive in nature); Forfeiture; Double Jeopardy-Previous Civil Forfeiture, Michigan Lawyer’s Weekly, October 9, 1995, at 7 (discussing United States v. Salinas, a Sixth Circuit opinion holding that forfeiture of car as drug proceeds did not count for double jeopardy purposes during a criminal trial). For a recent Michigan decision applying the Ursery standard, see People of the State of Michigan v. Everard, 1997 Mich.App. LEXIS 321, *11 (1997)(deciding on the validity of a forfeiture taken pursuant to Michigan’s chop shop statute, MCL 750.535a(2), MSA 28.803 (1)(5).

  39. The statutory authority for forfeiture came from a Michigan nuisance abatement statute (Michigan Compiled Laws 600.3801):

    "Any building, vehicle, boat, aircraft, or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, . . . is declared a nuisance . . . and all . . . nuisances shall be enjoined and abated as provided in this act and as provided in the court rules.

    Any person or his or her servant, agent, or employee who owns, leases, conducts, or maintains any building, vehicle, or placed used for any of the purposes or acts set forth in this section is guilty of a nuisance."

    One important note, however, is that, under a nuisance action such as the one in question, the court in equity can use its discretion to tailor a remedy to fit the situation. The decision to deny an abatement order is within that permissible discretion. See People ex rel Wayne Co. Prosecutor v. Tate, 306 Mich. 667, 669, 11 N.W.2d 282 (1943). In Bennis, the trial judge chose not to exercise that remedial discretion, though the Michigan Supreme Court and United States Supreme Court recognized its existence in the case law.

  40. Bennis, 116 S.Ct. 994 (Stevens, J., dissenting).

  41. As an example from the past, a car dealer was required to forfeit his secured interest in an automobile that was used, after sale, to unlawfully transport distilled spirits during Prohibition. Goldsmith-Grant v. United States, 254 U.S. 505 (1921). Both the car dealer in this case and Tina Bennis, however, may retain the ability to sue their co-owner for the loss on the basis of private law, such as contract.

  42. "This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable." 116 S.Ct. 994 (Thomas, J., concurring).

  43. Ursery v. United States, 56 F.3d 568 (1995).

  44. Ursery, 116 S.Ct. 2135.

  45. Bovard, supra note 2, at 6 (citing Cary Copeland, Civil Forfeiture and the Non-Lawyer, U.S. Dept. of Justice, Bureau of Justice Assistance Forfeiture Project, Spring 1992).

  46. Levy, supra note 15, at 47 and n. 18 (citing a list of federal statutes in Doyle, Crime and Forfeiture, CRS Report for Congress, October 15, 1992, appendix, pp. 45-49).

  47. MCL 333.7521(1)(f); MSA 14.15(7521)(1)(f); In re Forfeiture of United States Currency, 164 Mich.App. 171, 178, 416 N.W.2d 700 (1987).

  48. Id.

  49. Michigan v. $1,159,420.00, 194 Mich. App. 134, 147, 486 N.W.2d 326, 333 (1992).

  50. In re Forfeiture of $15,232, 183 Mich.App. 833, 836, 455 N.W.2d 428 (1990); In re 301 East Cass Street, 194 Mich. App. 381, 487 N.W.2d 795 (1992).

  51. In re Forfeiture of $5,264, 432 Mich. 242, 244-45, 439 N.W.2d 246 (1989).

  52. This "seizure without process" power is provided in MCL 333.7522(c) and (d), MSA 14.15(7522)(c) and (d).

  53. U.S. v. Real Property known as 11348 Wyoming, Detroit, Michigan, 705 F.Supp. 352, 355 (E.D. Mich. 1989); U.S. v. One 1975 Mercedes 280S, 590 F.2d 196, 199 (6th Cir. 1978); U.S. v. One 1975 Chevrolet K-5 Blazer, 495 F.Supp. 737, 740 (W.D. Mich. 1980). Probable cause for seizures without process in Michigan has been similarly defined. Michigan v. U.S. Currency and One Mercedes Benz, 164 Mich. App. 171, 178, N.W.2d 700, 703 (1987)(citing People v. Oliver, 417 Mich. 366, 374, 338 N.W.2d 167 (1983)).

  54. City of Lansing v. $30,632.41, 184 Mich. App. 677, 459 N.W.2d 99 (1990)(citing People v. U.S. Currency, 158 Mich. App. 126, 404 N.W.2d 634 (1986); In re Forfeiture of $28,088, 172 Mich. App. 200, 431 N.W.2d 437 (1988)); In re Forfeiture of 719 N. Main, 175 Mich. App. 107, 114, 437 N.W.2d 332 (1989).

  55. Michigan Constitution, Article I, Section 20 describes the rights of accused individuals, above and beyond other protections found elsewhere such as the due process clause:

    "Rights of accused in criminal proceedings. In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year; to be informed of the nature of the accusation; to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor; to have the assistance of counsel for his defense; to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and, as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to prosecute an appeal."

  56. U.S. v. 11348 Wyoming, 705 F.Supp., at 355 (citing U.S. v. $41,305.00, 802 F.2d 895, 904 (11th Cir. 1986).

  57. Wolfenden v. Burke, 69 Mich. App. 394, 399, 245 N.W.2d 61 (1976)(citing Conservation Dep’t v. Brown, 335 Mich. 343, 55 N.W.2d 859 (1992). See also Michigan v. $1,159,420.00, 194 Mich. App. 134, 154 (1992).

  58. Wolfenden, supra, at 399; Thomas v. Steuernol, 185 Mich. App. 148, 155-56, 460 N.W.2d 577 (1990).

  59. See Conservation Dep’t v. Brown, 335 Mich. 343, 350-51, 55 N.W.2d 859 (1952)(reviewing legality of a seizure of illegally used fishing nets during a forfeiture proceeding); In re Forfeiture of $28,088, 172 Mich. App. 200, 206, 431 N.W.2d 437 (1988)(reviewing validity of a search warrant during a forfeiture proceeding); In re Forfeiture of United States Currency, 171 Mich. App. 684, 686-87, 431 N.W.2d 131 (1988)(reviewing legality of an investigative stop during a forfeiture proceeding); In re Forfeiture of United States Currency, 166 Mich. App. 81, 89, 91-92, 420 N.W.2d 131 (1988)(holding that a suppression issue decided in a criminal case could not be relitigated in a forfeiture proceeding, but that the rules of evidence should be strictly applied). For a similar application in a federal case involving a Michigan defendant, see U.S. v. $53,082.00, 985 F.2d 245 (6th Cir. 1993)(excluding the use of a dog sniff in a forfeiture proceeding after holding that officers telling individuals in Detroit Metro Airport that their money would be subject to a dog sniff presented them with no choice and constituted a Fourth Amendment seizure without a warrant and did not fall within an exception to the warrant requirement).

  60. See In re $15,232, 183 Mich. App., at 834-837.

  61. U.S. v. Real Property Known as 11348 Wyoming, Detroit, Michigan, 705 F.Supp. 352 (E.D. Mich. 1989).

  62. 509 U.S. 602, 125 L.Ed.2d 488, 113 S.Ct. 2801 (1993).

  63. MCL 333.7523, MSA 14.15 (7523); construed in Michigan v. One 1983 Cadillac, 176 Mich. App. 277, 439 N.W.2d 346 (1989) (citing Lenawee Prosecutor v. One 1981 Buick Two Door Riviera, 165 Mich. App. 762, 766-67, 419 N.W.2d 458 (1988).

  64. MCL 333.7525, MSA 14.15(7525).

  65. Michigan v. U.S. Currency, 172 Mich.App. 790, 432 N.W.2d 442 (1988).

  66. See, e.g., Horne v. Office of the Attorney General, 662 F.Supp. 237 (E.D. Mich. 1987)(showing the consequences of failure to file a proper claim under federal statutes).

  67. See U.S. v. Real Property Commonly Known as 16900 Mark Twain, Wayne Cty., Detroit, Mich., et al (Lawyer’s Weekly No. WD-12007)(discussed in Michigan Lawyer’s Weekly, January 24, 1994, at 15.); See also Michigan v. Coon, 200 Mich. App. 244, 503 N.W.2d 746 (1993)(acquittal on a charge of concealing or misrepresenting the identification of one vehicle did not make the confiscation of that vehicle improper because confiscation statute [MCL 750.415(4), MSA 28.647(4)] allows confiscation merely upon a showing that the identity of the vehicle cannot be determined).

  68. Terrance G. Reed, American Forfeiture Law: Property Owners Meet the Prosecutor 9, Cato Institute Policy Analysis No. 179 (Sept. 29, 1992).

  69. Id.

  70. 113 S.Ct. 1126 (1993).

  71. Bennis, 116 S.Ct. 994.

  72. In re Forfeiture of $53, 178 Mich. App. 480, 444 N.W.2d 182 (1989)(distinguished from abatement law in Bennis based on statutory construction). The court concluded that

    " 7521(1)(d)(ii) was intended to establish a separate defense for each claimant who has a personal interest in the property as an owner. Hence, where the prosecution commences an action against a conveyance that is used for unlawful narcotics activity, the forfeiture of the res is subject to the interest of the co-owner who proves that the proscribed act was done without his or her knowledge or consent, express or implied. The state may only forfeit the ownership interest of a non-innocent owner. If, for example, the innocent owner has a fifty percent interest in the vehicle, the property may be sold and the proceeds divided equally between the state and the innocent co-owner."

    Id. at 495-96.

  73. Junius Americanus [pseud.], letter, N.Y. Daily Advertiser, July 23, 1790 (quoted in Charles Warren, Congress, The Constitution, and the Supreme Court 105 (1930)).

  74. Doug Bandow, War on Drugs or War on America?, STANFORD L. & POL’Y REV. 242, 252 (Fall 1991).

  75. In addressing the crisis of Watergate and strong majority pressures to legislate additional checks on the Executive power, Robert Bork stated this proposition well in his objections, based on principles of separation of powers, to the independent counsel law:

    "It is particularly important in times of crisis and deep-seated unease that we adhere to the constitutional system that has sustained us for so long. It is all too easy to say that this is an emergency and we will only violate the Constitution this one time. But that kind of expediency is habit forming. Bad precedents, once established, are easily used in the future."

    Special Prosecutor: Hearings Before the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. 453 (1973)(testimony of Robert H. Bork, Acting Attorney General).

    A similar statement was made at the same hearing by Roger C. Cramton, Professor of Law at Cornell, when he stated:

    "[There is a] historic tendency for governmental devices that have once proven handy to be called on again and again and again. . . . The existence of an emergency, the Supreme Court has held, does not create power where none exists. As Mr. Justice Holmes stated, passions of the moment should not be allowed ‘to exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well-settled principles of law will bend.’"

    Id. at 358 (testimony of Roger C. Cramton, Professor of Law, Cornell Law School).

  76. For a discussion of the historical legal origins of civil forfeiture doctrine, such as English law and "deodands," and historical opposition to the doctrines, such as the English Barons’ efforts to obtain protections against governmental forfeiture power in the Magna Carta, see Levy, supra note 15, at 1-38.

  77. Reed, supra note 68, at 4.

  78. Id.

  79. Levy, supra note 15, at 46.

  80. 3 Dallas 297 (1796).

  81. U.S. v. The Palmyra, 25 U.S. 1 (1827).

  82. U.S. v. Brig Malek Adhel, 43 U.S. 210 (1844); U.S. v. Schooner Little Charles, 1 Brock Rep. 347 (1818).

  83. U.S. Stat. at Large, XII, 589. The Act was titled, "An Act to Suppress Insurrection; to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other purposes." It stated that, "to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons hereinafter named." Those named, however, were not limited to those convicted of treason or rebellion. Instead, due to the in rem character of the proceedings, forfeiture related to the property of "persons armed in rebellion, or abetting it."

  84. George C. Pratt & William B. Petersen, Civil Forfeiture in the Second Circuit, 65 St. John’s L. Rev. 653, 658 (1991).

  85. Levy, supra note 15, at 53.

  86. Levy, supra note 15, at 54.

  87. Congressional Globe, 37th Cong., 2d sess. 1574 (1862). See also Miller v. U.S., 78 U.S. 268, at 322, 323 (1871)(Field, J., dissenting)(arguing that, in upholding the Act, constitutional safeguards "would be broken down and swept away" and that the majority’s decision "works a complete revolution in our criminal jurisprudence").

  88. Levy, supra note 15, at 55 (citing 5 The Collected Works of Abraham Lincoln 328-331 (Roy P. Basler ed. 1953).

  89. Id.

  90. See Abraham Lincoln, Letter to Orville H. Browning, Sept. 22, 1861, in Lincoln: Speeches and Writings 1859-1865, at 268 (Fehrenbacher ed. 1989).

  91. Abraham Lincoln, Proclamation of Amnesty and Reconstruction, Sept. 8, 1863, in Lincoln: Speeches and Writings 1859-1865, at 268 (Fehrenbacher ed. 1989)(granting to rebels a "full pardon . . . with restoration of all rights of property, except as to slaves, and in property cases where rights of third parties shall have intervened, and upon the condition that every such person shall take and subscribe an oath . . ."). See also Abraham Lincoln, Letter to Ulysses S. Grant, April 6, 1865, in Lincoln: Speeches and Writings 1859-1865, at 268 (Fehrenbacher ed. 1989)(explaining again that, "confiscations shall be remitted to the people of any State which will now promptly, and in good faith, withdraw its troops and other support, from resistance to the government.").

  92. Levy, supra note 15(citing McPherson, Political History of the United States 203-04 (where a reprint of the Confederate Act can be found)).

  93. Quoted in Id. at 52.

  94. Id.

  95. Miller v. United States, 78 U.S. 268 (1871)(stating, "The power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted. It therefore includes the right to seize and confiscate all property of the enemy and dispose of it at the will of the captor.")

  96. Id. at 307.

  97. See Bork & Cramton, supra note 76.

  98. See, e.g., Dobbins v. United States, 96 U.S. 395 (1878)(holding that land leased to a distiller who defrauded the U.S., where the owner lacked knowledge of the fraudulent use of his land, was still subject to forfeiture because the property was guilty).

  99. Boyd v. United States, 116 U.S. 616 (1886).

  100. United States v. Zucker, 161 U.S. 475 (1896).

  101. J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 509, 510, 511 (1921).

  102. 21 U.S.C. 881.

  103. See Hyde, supra note 1, at 25 (citing 18 U.S.C. 984(b)(1)(Supp. IV 1992) and 832 F.Supp. 542 (E.D. N.Y. 1993).

  104. Clinton Rossiter, Constitutional Dictatorship 5 (1948).

  105. Id. at 298.

  106. Id. at 300,303.

  107. Id. at 302.

  108. See, e.g., U.S. v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)(Chief Justice Rehnquist stating that more than 24 hours detention, attempts to force defecation, and a rectal exam of Montoya by Customs agents, even after a thorough search failed to turn up any evidence of drug smuggling, was justified because of "the veritable national crisis in law enforcement caused by the smuggling of illegal narcotics.")

  109. Hyde, supra note 1, at 29.

  110. Levy, supra note 15, at 148-49.

  111. Jarret Wollstein, The Government’s War on Property, The Freeman, July 1993, at 250.

  112. Department of Justice Announces $14.4 Million Grant for Michigan Law Enforcement, U.S. Newswire, March 1, 1991.

  113. Henry Hyde’s federal bill would change the burden to proof by "clear and convincing evidence." That standard is certainly an improvement over the current standard, especially in the federal system where probable cause can trigger a forfeiture.

  114. A reform short of this should at least place forfeiture defendants in the same position as other civil litigants—such as granting a right to a jury trial.

  115. Brief of American Library Assoc., et al, at 6, Alexander v. U.S., 113 S.Ct. 2766 (1993)(No. 91-1526): "Criminal forfeiture in personam arose in medieval England, where, following a felony conviction, the entire estate of the felon was confiscated and any inheritance from the felon was prohibited. In the Magna Carta, forfeiture on the ground of commission of a felony was sharply curtailed, but survived to an extent in the English common law." Conversely, in the brief of the U.S. Solicitor General in the same case, the government lauded forfeiture as an "ancient punishment" while quoting the Old Testament. Brief for the United States, at 43, Alexander v. U.S., 113 S.Ct. 2766 (1993)(No. 91-1526).

  116. See Hyde, supra note 1, at 69.

  117. See Id., at 78.

  118. Steven B. Duke and Albert C. Gross, Casualties of War: Drug prohibition has shot gaping holes in the Bill of Rights, Reason, Feb. 1994, at 27.

  119. Reed, supra note 68, at 23-24.

  120. See generally, William Niskanen, Bureaucracy and Representative Government (1971)(arguing that bureaucrats maximize their budgets). See also ludwig von Mises, Bureaucracy (1944); George C. Roche, America By the Throat: The Stranglehold of Federal Bureaucracy (1983).

  121. See Judy Osburn, DOJ Seeks Expanded Forfeiture Powers Disguised as "Reform," F.E.A.R. Chron., July 1994.

  122. William Raspberry, Whittling Away the Demand for Drugs, Wash. Post, July 5, 1991, at A19.

  123. Hyde, supra note 1, at 79.

  124. "Rent seeking" occurs when individual or special interests use the political system to redistribute income toward themselves.

  125. For a general discussion of some of these proposals, see Michael Zeldin, Forfeiture Plan Would Strike a Judicious Balance; All Sides Would Benefit From This Fair Compromise, Leg. Times, May 2, 1994, at 25. When reforming the forfeiture laws, the legislature must also recognize potential means for circumventing reform. For example, even if it becomes more difficult to effectuate a forfeiture, an action might be characterized as something other than a forfeiture and, thus, not subject to procedural rules meant to limit forfeiture powers. This outcome is demonstrated in a recent Michigan Supreme Court decision in which property was padlocked for one year under a Grand Rapids nuisance ordinance. Because padlocking involves no loss of title, the court determined that it was not a forfeiture and consequently not subject to the procedural rules for effectuating a valid forfeiture. Rental Property Owners Association of Kent County v. City of Grand Rapids, 455 Mich. 246, 263-64, 566 N.W.2d 514 (1997). This type of outcome resembles much of the modern takings jurisprudence where a regulation which infringes on property rights is deemed not a taking and thus not subject to the just compensation requirement. See generally Kochan, supra note 33.

  126. Legal Papers of John Adams 106-47 (L. Wroth & H. Zubel, ed. 1965).

  127. Gideon Kanner, Never Mind, ‘Only’ Property Rights Were Violated, Wall St. J., Aug. 25, 1993, at A9; Hyde, supra note 1, at 14-15; Bovard, supra note 2, at 8. See also Phil Reeves, Gun Law Claims a Rich Recluse, Independent, Oct. 18, 1992; Thieves With Badges, Sacramento Bee, April 2, 1993; Carol Bidwell, Motives for Raid Questioned, Houston Chron., April 4, 1993; Daryl Kelley, Block Challenges Critical Report on Malibu Ranch Raid, L.A. Times, April 9, 1993.

  128. Report on the Death of Donald Scott, Office of the District Attorney, Ventura County, Calif. (1993).

  129. Id. Documents indicating this interest in confiscation were also uncovered in an expose on the raid aired on CBS television’s 60 Minutes on April 5, 1993.

  130. Charles Oliver, A Forfeiture of Civil Liberties?, Investors Business Daily, March 7, 1995, at A1.

  131. See Hyde, supra note 1, at 76-77.

  132. Letter from Lord Acton to Bishop Mandell Creighton (Apr. 5, 1887), quoted in Gertrude Himmelfarb, Lord Acton: A Study in Conscience and Politics 160-61 (1952).