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October 14, 2009 -- Wall Street Journal (US)

Justices Weigh Rules On Recovering Seized Assets

By Jess Bravin

Return to Drug War News: Don't Miss Archive

WASHINGTON -- Every year, police agencies seize more than $1 billion of cars, cash and other goods linked to drug crimes. The Supreme Court will hear arguments Wednesday on how hard it should be for owners to try to recover that property.

Police typically get to keep much of what they seize, although owners can fight forfeiture in court. On Wednesday, the central issue will be whether owners are entitled to a prompt, informal hearing to argue that they should get their property back while waiting for a formal forfeiture proceeding that could be scheduled months or years in the future. At present, some states impound the property during that lag time and provide owners no recourse. Critics say many innocent owners just give up during that period, and states then are free to sell their cars and other items.

The justices will hear a case from Chicago involving six different property owners, including Tyhesha Brunston, who loaned her Chevrolet Impala to a childhood friend who was later arrested in the car and charged with possessing drugs.

"Words can't describe how mad I was" at him, says Ms. Brunston, 30 years old. "He was not supposed to be smoking marijuana in my car."

Illinois law allows "innocent owners" to reclaim seized property. But in practice they may have to wait months -- or in Ms. Brunston's case, three years -- before recovering their cars.

Last year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled that the Constitution requires that owners get a more timely chance to seek return of their property.

The appeals court ordered a trial judge to work with city officials and lawyers representing Ms. Brunston and other owners of seized property to fashion "some sort of mechanism" to test whether seizures were valid.

"The hearing should be prompt but need not be formal," the court said. A neutral judge or hearing officer would decide whether the owner got possession of the property during the lengthy period before the more formal forfeiture proceeding was held -- something like a property equivalent of a bail hearing before trial.

The Cook County state's attorney appealed the decision. The Justice Department, 20 states and several organizations representing state and local government have backed the appeal.

"It's really about government bullying," said Craig Futterman, a University of Chicago law professor representing Ms. Brunston and other owners in the case.

For law enforcement, "forfeiture has become a multibillion-dollar business across the nation," he said, noting that Chicago netted nearly $14 million through asset forfeitures in 2008. "With those powerful interests in taking and seizing and keeping property, there needs to be some kind of check," he said.

A Justice Department fund that receives proceeds from forfeitures of cash and property across the country received $1.2 billion in cash and cash equivalents in the fiscal year ended Sept. 30, 2008, down from $1.4 billion in the previous fiscal year.

In 2000, then-U.S. District Judge Michael Mukasey rejected a challenge to New York City's forfeiture system, which was similar to Chicago's. He found that if police had sufficient reason to arrest a suspect, they also were justified in seizing the property pending a forfeiture hearing months or years later.

That decision was reversed by Justice Sonia Sotomayor, then a judge on the Second Circuit in New York.

"A car or truck is often central to a person's livelihood or daily activities," she wrote. The Constitution gives people a right to force the city to justify seizures "at an early order to minimize any arbitrary or mistaken encroachment upon plaintiffs' use and possession of their property."

To comply with the ruling, New York City adopted a system that provides owners a hearing within weeks of a seizure. In 2008, the city seized 3,166 vehicles, said police spokesman Paul Browne. Of those, 2,152 were returned, mostly to people charged with drunken driving, after they had undergone treatment for alcoholism. Among the others, the city kept 632 vehicles, while 320 remain in dispute, he said.

The rapid scheduling of the hearings gives police leverage with defendants, Mr. Browne says. In drunken-driving cases, for example, police will often agree to release a vehicle if the driver undergoes substance-abuse counseling.

Paul Castiglione, a Cook County assistant state's attorney who will defend the Illinois law before the court Wednesday, said that giving owners a preliminary hearing to recover their property would interfere with law enforcement.

"It would be disruptive in a number of ways," he said. "The police would have barely begun their investigation" before having to defend the seizure, he said, and may not have been able to locate all the people who could claim ownership of the property. Moreover, "it would force a duplication of effort, a duplication of the ultimate civil forfeiture hearing."

He rejects arguments that police are motivated by the chance to keep the property.

"When property is seized, it's not like the government can use it right away. It's a car impounded in a lot," he said. "It's never going to be turned over till a court says so."

John Worrall, a criminologist at the University of Texas at Dallas who has studied drug-forfeiture policies, said it isn't that simple. "To say that law enforcement is only in it for the money is silly; there are easier ways to get money than going through asset-forfeiture proceedings," he said.

On the other hand, Prof. Worrall said, "the money matters." He found that 40% of police executives in a 2001 survey said drug-forfeiture funds were necessary to their budgets. "With the budget crisis in local government, I think we're going to see renewed interest in forfeiture," he said.

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