What we really need in a forfeiture reform bill- Part 1A: Provisions to improve availability of counsel

(c) 2014 Brenda Grantland
Truth and Justice Blog, 11/10/2014

As I said in earlier blogs, the pending federal forfeiture reform bills don’t go far enough.

What we really need in federal forfeiture reform legislation is to plug up the loopholes prosecutors and courts have created in the CAFRA 2000 reforms, and to expand the protections to third parties in criminal forfeiture cases.

Here are my major recommendations. I will talk about them in more detail in later blogs.

Provisions to improve availability of counsel

The impediment that most often prevents claimants from having a fighting chance in court is their inability to hire a lawyer to represent them.  Some claimants were indigent in the first place, but quite often claimants had substantial assets until the government seized all of them, or so much of them that they don’t have enough left to litigate their forfeiture cases to completion.

The Constitution’s Fifth Amendment and Due Process clauses should prevent the government from taking private property and depriving the property owner of the means to defend it, especially since forfeiture – be it civil or criminal forfeiture – is punishment (implicating the Eighth Amendment).

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A.  CAFRA’s appointment of counsel provisions for indigent claimants are not being implemented.

The discretionary provision that allows the court to appoint a public defender or CJA (private court appointed) attorney if there is a pending federal criminal case against the claimant is implemented sometimes, but not often enough. CAFRA gave judges discretion to make such appointments and many never bothered.

As long as judges have discretion to deny appointment of counsel under this provision, enforcement will vary from courtroom to courtroom.  That is not Due Process. The statute should make appointment of counsel mandatory, since a client defending himself in a civil forfeiture case could inadvertently waive his Fifth Amendment privilege.

The provision that requires judges to appoint counsel if the claimant’s primary residence is seized is not being implemented either.  Rather than just fix this problem by telling claimants they have this right to court appointed counsel on request, judges could be required to appoint counsel for indigents by a provision that makes the deprivation of the statutory right to counsel grounds for invalidating the forfeiture judgment.  That’s what Gideon v. Wainwright did for the right to counsel for indigent criminal defendants.

Full implementation of CAFRA’s right to counsel for home owners requires plugging loopholes, including the loophole a judge in Fresno created to deny counsel for a senior citizen living on minimal Social Security payments – stating that because the claimant was currently living elsewhere and renting out her home and because she had been staying in her country of birth for a period of time before that – on temporary visas – her home was not her “primary residence.”  The record showed the claimant was forced to stay with her adult daughter after the forfeiture case was commenced by the government’s actions, and identity theft that befell her while she was out of the country.  The government seized her car, and the identity thief emptied her bank accounts.  With only Social Security to rely on, she didn’t have enough money to live alone in the house, especially with no transportation. She moved in with her daughter and family in a small apartment, and rented out her home because she had to, to survive and to pay attorneys fees to defend everything that was left of what she ever owned in life. The seized property was the home she had purchased with her first husband and lived in for more than 20 years. It was the only home she had ever owned, and her only remaining asset. How could it not be her primary residence?

Clearly if court appointed counsel is limited to the forfeiture of one’s primary residence, the statute should define primary residence clearly to prevent it from being absurdly interpreted to avoid appointing counsel.

The other reason these provisions aren’t being implemented is because Congress didn’t appropriate money to pay for them.

The statute should require a certain portion of the forfeiture revenue generated each year by the DOJ and Treasury Department be set aside to pay for court appointed forfeiture defense counsel. After all, news reports are showing an exponential increase in forfeiture revenue taken in each year, rising to over $4 billion in 2012. Clearly this system is out of control, and only something that taps into the revenue stream to level the playing field will change anything.

B.  CAFRA’s provisions for appointment of counsel did not go far enough, and need expanding

Because of criminal defendants’ Fifth Amendment privilege, Congress gave criminal defendants better protection than it gave innocent citizens whose property is seized in civil forfeiture cases. Citizens not charged with a crime generally do not qualify for court appointed counsel in civil forfeiture cases. This not only makes no sense to the average American, but it flies in the face of Due Process.  (I always loved that expression “flies in the face” from older court opinions. I can’t think of any more graphic image for the insult to the Constitution that it entails.)

Due process should be the same for all classes of citizens.  I don’t want to see the rights of those accused of crime being taken away to level the playing field, but I want the same rights to apply across the board.

Any forfeiture reform bill needs to expand the types of cases in which counsel is appointed, with strict guidelines to ensure it is implemented.

Appointment of counsel should be required in these situations at the very least:

  • If an indigent claimant has English as a second language, they will not be able to represent themselves as a practical matter.
  • Similarly if the client has a mental or physical impairment, or an education deficiency that prevents them from representing themselves.
  • If the case is extraordinarily complex and/or the amount of assets seized are very large, and the government has rendered the claimant unable to hire counsel by seizing all available assets, the court should be required to either release a portion of the seized assets to allow the property owner to hire counsel or appoint forfeiture counsel at the government’s expense.

In all of these cases the claimants’ attorneys’ fees should be paid from asset forfeiture revenue, so as not to increase appropriations from tax revenue.

Brenda Grantland

Brenda Grantland is a lawyer in Mill Valley, CA, who handles primarily asset forfeiture defense, crime victims’ rights, and federal civil and criminal appeals. She is also the author of several books on asset forfeiture and other subjects.

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