Background: A November 2012 media story from WBUR provides some earlier background. Russ Caswell operates the Caswell Motel in Tewksbury. Between 1994 and 2008, 15 drug-related incidents took place on the premises. Caswell not only maintains he knew nothing about the specifics in advance, but that when he saw classical signs of any criminal activity, he notified local police. However, an ambitious affirmative action federal prosecutor, Carmen Ortiz, thought differently. Ortiz had sought to seize the Motel Caswell from the Caswell family under the theory that the motel allegedly facilitated drug crimes, citing the 15 aforementioned incidents, and claiming that the Caswells had failed to cooperate with police to alleviate drug problems at the property despite evidence to the contrary introduced by Russ Caswell. Caswell was never arrested or charged with any crime, yet the feds sought to seize the property nonetheless. But after US Magistrate Judith Dein heard the case, she rejected the U.S. Attorney's claim, and tore them a new asshole in the process, basically accusing the feds of putting Caswell in a box. Nevertheless, Caswell, who's spent three years and $100,000 to date defending himself even though he was eventually represented pro bono by the Institute for Justice, is not officially off the hook yet since Ortiz says her office is weighing their options with respect to appeal; they must decide by March 15th.
But what is just as noteworthy is that during the hearing, a government agency revealed the inside scoop on how they choose property assets for forfeiture. It turns out that the feds go for the lowest hanging fruit, preferentially taergeting property owned by mom-and-pop operations and avoiding those properties which are owned by corporations and protected by armies of expensive and experienced lawyers. Vincent Kelly, DEA Special Agent in the New England office asset forfeiture unit, gave a deposition; here's the account published by TheIntelHub:
The workings of the asset forfeiture machine were partially revealed in the deposition of Vincent Kelly, DEA Special Agent in the New England office asset forfeiture unit. He testified under oath that his job was to look for high-dollar property with no mortgage to be forfeited. Kelly explained clearly how he checked the Registry of Deeds “to find out who owns the property and how much equity is on the property.” Then, the DEA would contact local police to see how many drug arrests or other serious crimes been committed on the property.
Kelly said it was DEA policy to deal only with property worth at least $50,000.00. With Caswell Motel’s worth between $1.5 and $1.8 million dollars, it was ripe for forfeiture since many drug arrests had occurred there.
In another sign that the motel had been the target of selective prosecution, defense attorneys and the Lowell Sun also uncovered evidence that at one point, narcotic officers and police made more arrests on the premises of Walmart, IHop, and Home Depot, nearby businesses also located off I-95 on Main Street. From 2010-2012, the attorneys said 19 drug arrests were made at Caswell Motel, with 24 drug arrests on Walmart’s premises, 14 at Home Depot and five each at Applebee’s and Burger King. But those are all deep-pocketed corporations with legions of lawyers; the Caswell family and its motel was not.
Yet neither Walmart, Home Depot, Applebee's, nor Burger King, all owned by corporations, were targeted for forfeiture; only the mom-and-pop Motel Caswell. The Motel Caswell case is only an especially egregious example of asset forfeiture abuses; for years, attorneys, community activists, and advocacy groups, such as Forfeiture Endangers Americans Rights (FEAR) and Americans for Forfeiture Reform have been fighting to reign in such prosecutorial misconduct, and some progress has been made.
The problem with civil asset forfeiture is not only the concept itself, but also its execution. Civil asset forfeiture presumes guilt; it is imposed without a finding of guilt against the owners of the assets. Because it's a civil procedure, the burden of proof tends to be upon the property owner to prove by a preponderance of evidence that the property was not involved in a crime. This constitutes theft. Second, under accompanying equitable sharing laws, law enforcement agencies involved get to share in the seized assets. This gives law enforcement a material incentive to promote civil asset forfeiture; even if law enforcement agencies act according to the law, it's like putting a bunch of three-year-old kids into a room where cookies, cake and ice cream are present, and NO adults. What do you think the kids will do?
(1). Ideally, civil asset forfeiture should be banned; it's the equivalent of a fine, and fines are normally prescribed as part of a judge's sentence. Instead, have a judge sentence a convicted offender to forfeiture of named assets as a form of a fine. This restores the presumption of innocence.
(2). If civil asset forfeiture is really considered necessary, then scrap the equitable sharing provisions. Place the assets into the state and/or federal general fund, and require the affected law enforcement agencies to compete for those funds just as they compete for other funding. This will remove the material incentive which often drives asset forfeiture onto unconstitutional territory.
Comments posted to the Lowell Sun story unanimously support the Caswells and some call for Carmen Oritz to be sanctioned for her abusive behavior.