For Immediate Release - November 12, 1999

One of our foundational principles is that we are a nation of laws, not of men. People in power have to go by the rules. Many nations are governed on the principle that people serve the government, but America is different. Here we have rights as citizens and those who govern have authority with limits set by law, our constitution and our legal traditions. Even though we are a democracy, we don't even allow the majority to trample on our basic rights and protections.

Serving on the Joint Interim Committee on Asset Forfeiture has provided an opportunity to hear testimony that is particularly disturbing. In many cases, the law enforcement agencies are giving themselves a bad name by sidestepping state law and allowing federal authorities to take charge of assets found under suspicious circumstances or property that is used in commission of a crime. While the state law is very clear that such assets should go to education or state or county general funds, if the assets are taken by federal law enforcement officials they often keep around 20% and return around 80% to the local or state law enforcement agency that seized it.

This is disturbing for at least three reasons. Our form of government is dependent upon the principle of checks and balances. The police investigate, the prosecutor prosecutes and the courts decide punishment. Also, legislatures, city councils and county commissions are traditionally given the responsibility of deciding how to allocate public money while other officials administer the funds. Each one has its role to play and is limited from becoming too powerful by the others. However, in this instance, the checks and balances are damaged because law enforcement agencies are allowed to directly profit from their actions without the approval of other elected officials. This sets up an incentive for them to ignore state law and turn seizures over to the federal government since their departments stand to gain financially. In essence the police take the place of other branches of government because they not only seize the money but they keep it in their own agency to spend themselves. In these instances, the courts should determine the guilt or innocence of the people charged with crimes and should also assess punishment. Oftentimes forfeiture of property could be considered little more than punishment because the property is not a profit of the crime but its use was only incidental to the crime. Allowing the assets to be spent by those who seize it creates an incentive for police agencies to become soldiers of fortune. While very few would abuse the power, it creates distrust in one of our noblest professions.

There is another important principle of the American system that is damaged by the currently popular approach to drug related prosecution and punishment; the principle of proportionality. Is it proportional that those who grow marijuana in their basement for personal use should lose their home to the government? Is this in keeping with our American heritage? While those sorts of decisions have been decided by judges and juries traditionally, one prosecutor in Missouri defended the lack of checks and balances under current seizure practices as helping in the war on drugs. While that may be true, we need to be cautious about changing our tradition of citizen rights, checks and balances and the rule of law. We might fight a better fight against drugs but lose our way of life in America.

The current forfeiture situation even turns the tradition of innocence until proven guilty on its head. Property owners can get their day in federal court on whether their property should be forfeited, but it is only after it has been seized. Even worse, the government doesn't have to prove the property should have been taken; it's the burden of the property owners to show why they should get their property returned. I think they even have to put up a bond or some cash to have a hearing. In essence, the property owners are presumed guilty unless they can prove their innocence.

In Missouri there are laws and constitutional provisions which specifically detail how seized and abandoned property is to be treated. When local law enforcement agencies are allowed to sidestep the law and the constitution by permitting federal authorities to seize assets presumed used in commission of a crime or found under suspicious circumstances and later return a substantial portion back to the local agency, our system of government gets a black eye. We are a nation of laws, not of men. It is time for state and local law enforcement agencies which have previously failed to keep the spirit, if not the letter of state law, to make a commitment to do so.

If you have questions or comments concerning this issue or any other issue involving state government, please do not hesitate to contact me. The address is Senator Larry Rohrbach, State Capitol, Room 433, Jefferson City, MO 65101. The phone number is (573) 751-2780. My e-mail address is lrohrbac@services.state.mo.us. Keep in touch!