Revolution, and it is certainly reminiscent of the KGB and of similar institutions in other nations that we do not revere.

In short, the DOJ proposal is replete with every Christmas tree light the DOJ could think of, and I would suggest, and this is literally how strongly I feel about it, I would rather keep what we have on the books now than have your legitimate and laudable efforts to reform forfeiture be demeaned by passing this bill, because it is not reform at all.

Now, to be sure, there are things in this bill that are consistent and compatible with proposals that you have made, and that we agree with. The problem is that DOJ wants to bargain. They don't want to give any reform without taking some place else.

I think I should add, Stef Cassella is a friend of mine. We have appeared on panels before and I have a very high respect for him and his intellect and his integrity. But he has a client: The law enforcement community. And the proposals he has made here in many, many instances are bordering on reprehensible.

Let me respond to a couple of things that were mentioned this morning. The cost bond, there is no reason to phase out the cost bond. It should be repealed today. It should have been repealed yesterday. There shouldn't be a cost, a price of admission, to get in Federal court when it is the Government that is trying to take property that somebody already owns. It just shouldn't be.

There is a modest filing fee when I go down to the clerk of my Federal Court and file a lawsuit. It is usually depending on the type of case, 60 or 70 bucks. That is fine. That is enough. And if the Government needs some sort of reparation in extraordinary cases, if they have to dry dock a yacht or something, then I have no problem with a provision where they can go before a judge and show the judge that there is cause that there ought to be a bond. But the ordinary run-of-the-mill case, the property owner ought to be able to go into court for nothing, or for a very modest filing fee. What I would suggest-they are concerned about frivolous claims. Well, my goodness, they are taking property from someone else that it belongs to before they got it. Let's try it for a year or two and see how it works. And then if they can come back before this committee and prove that there is a problem with frivolous claims, then I will be very happy to second Mr. Cassella in suggesting some modification of the abolition of cost bond.

This bill provides for a pretrial restraint of substitute assets. That means if the Government believes they can prove that there were some assets that were illegally obtained, but no longer available for the government to seize, after the case is over and they have won, they have the right to go after substitute assets in the hands of the property owner, but they don't want to wait.

Well, the amount of abuse replete in that proposal, I would think, is obvious. But I can tell you from my experience what will happen. They will try to seize every asset. If they have a target, they think they know somebody is engaging in criminal conduct, they will seize every asset they can find that that person owns under the guise of being substitute assets for the forfeiture that has not yet occurred and then they will wait months, maybe even years, and then indict them. And in the meantime, these people are crippled, economically I mean, and far less able to defend them

selves and maybe, just maybe, the Government is wrong and they really aren't as bad as guys as the Government thinks they are.

There is one thing-there are a couple of things that I would urge the Chair to consider adding to your bill. One, I have discussed with Stef Cassella in the past and I don't want to represent what DOJ's response is, but I don't think he thought it was a bad idea, and that is to have a time requirement, such as 90 days—a reasonable time-after a claim is filed for the Government to go into court.

As it is now, once a property owner has filed a claim, property has been seized and a claim is filed, there is an indefinite period up to the 5-year statute of limitations that the Government has to file a complaint in a Federal court. And very often, the wait from the time the property owner files a claim to the time the Government files the case in court, so you have a court to go to, it may be months and in some cases even years.

So I would propose, or suggest, that there be a 90-day time period, after a claim is filed that the Government has to file a complaint in the Federal court and if they don't meet that, or perhaps go into Federal court and ask for an extension, I mean, sometimes you get in a bind. It happens to private lawyers. It happens to Government lawyers. Then that's fine. Let them go into Federal court, show cause why they should be given an extension, but there ought to be a time limit.

Property is often damaged and it often deteriorates, especially vehicles that are seized by the Government are invariably worthless when they are returned than they were when they were seized by the Government. Cars sit out in open weather storage lots. Boats deteriorate because the Government doesn't want to spend money to maintain them and winterize them and so forth. There should be provisions whereby property owners who establish their right to property can get it back.

Then there is one other thing that I would like to ask the committee to consider. And that is making forfeiture cases in personam cases after a claim is filed. As it stands now, when a forfeiture action is filed, it is United States versus a parcel of land or a lot of$100,000 in currency and it stays that way. And courts sometimes use the legal fiction that it is the property that has done wrong and it is the property we are punishing to avoid the application of basic fundamental rights that we accept in this country.

So my suggestion is that the committee consider, when there is a case pending in Federal court, and in rem action against property, and a claim is filed, allow the claimant to be substituted as a party for the property so the case may start off United States v. a Parcel of Land at 101 North Main Street, but after the owner files a claim let it be United States v. John Brown, owner of that parcel of land. Then it is an in personam action.

And if Mr. Brown, the property owner, has some rights, they can be protected by the Federal court and this legal fiction that really was devised at the time of the formation of the country in order to get jurisdiction-because as we discussed this morning, the little federation we formed back in 1776 couldn't hold on to those ships that were owned by the East India Co. and so on, the Dutch and

the English and the French, if they didn't grab the boat and keep it.

Well, it is fine for the Government to use that to get jurisdiction, to get into court. But consider making it an in personam case, just like all the other cases in Federal court, once a claimant files, and some of the mischief that has been done in modern Federal forfeiture will end.

And then the final thing, the one thing that would change the complexion of forfeiture more than anything else is to have forfeited property or the liquidation, the money received from liquidation of forfeited property, go into the general fund of the United States or of the State or of the local government.

If we had a bounty every time a police officer made an arrest, the people of this country would rise up in outcry. Well, what we have now is a bounty on property. And drug officers, DEA and local drug officers alike, have told me privately, you know, we used to get promoted and we used to get good writeups, good recommendations in our annual reviews by making big drug busts. It doesn't work that way anymore, Mr. Edwards. It is how much property we have seized.

If you take the financial incentive out of the priorities in law enforcement, it will change the complexion for the better of law enforcement in this country.

Mr. Chairman, thank you so much for hearing me.

[The prepared statement of Messrs. Edwards, Smith, and Troberman follows:]

PREPARED STATEMENT OF E.E. (BO) EDWARDS III, ESQ., David B. SMITH, AND RICHARD J. TROBERMAN, COCHAIRS, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS ASSET FORFEITURE ABUSE TASK FORCE, ON BEHALF OF THE NATIONAL ASSOCIATION of Criminal DEFENSE LAWYERS

Chairman Hyde and Members of the Committee:

The 9,000 direct and 30,000 state and local affiliated memuers of the National Association of Criminal Defense Lawyers are private defense lawyers, public defenders, judges and law professors. They have devoted their lives to protecting the many provisions of the Constitution and the Bill of Rights concerned with fairness in the criminal justice system. NACDL's interest in, and special qualifications for understanding the import of H.R. 1916, and the dangers of the currently unabated federal government asset seizure and forfeiture programs, are keen.

On behalf of NACDL, we thank you for inviting us to share our collective expertise on asset seizure and forfeiture programs, and for inviting one of us, E.E. Edwards, to speak on behalf of the Association at this hearing. We are also thankful that other outstanding members of NACDL will be appearing on behalf of their clients and other bar associations: Terrance G. Reed, of Washington, D.C.; and Stephen M. Komie, of Chicago, Illinois.

I. Background

A. Summary of NACDL's Position on H.R. 1916 and the DOJ's Latest “Reform” Proposal(s)

For several years now, the Department of Justice's (DOJ) asset forfeiture program and similar state and local programs, utilizing a broad array of new and expanded federal and state forfeiture statutes', have provided federal, state and local law enforcement agencies with an unduly powerful weapon with which to fight the War on Drugs. And too often, the weaponry has been deployed to abuse law-abiding Americans.

The unchecked use of over-broad civil forfeiture statutes has run amok. Law enforcement

agencies, in their zeal, have turned the War on Drugs into a War on the Constitution. NACDL has long had several concerns with the federal asset forfeiture program, and the resulting denigration of constitutional protections. We thus support Chairman Hyde's much-needed bill, H.R. 1916, although we think it does not go far enough to reign in over-zealous law enforcement in this area. We also think the Department of Justice's latest “reform" proposal still fails to rise to the level of a meaningful set of corrections. Attached to this statement is our analysis of the latest DOJ proposal(s) (1994 and 1996), which we regard as taking away at least as much as they would give in terms of reform. Still, there is some common ground between DOJ and NACDL on this subject, and any provisions of their proposal left un-critiqued in the attachment are unobjectionable to us.

See Attachments A and B.

1 There are over two hundred federal civil forfeiture statutes, encompassing crimes from gambling and narcotics violations to child pornography profiteering.