We’ve previously covered the litigation by the Institute for Justice on behalf of Russ Caswell and his Motel Caswell, but I thought it was worth highlighting a particular aspect of the case: that the forfeiture was initiated by a DEA agent whose job it is to “hunt” for problem properties for the DEA to initiate forfeiture actions against in deals where local law enforcement are “cut in” for their participation. Jacob Sullum reports at Reason:
This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.
Under Massachusetts law, by contrast, police would have received only half the loot, and forfeiture may have been harder. State law says a seized property has to be used not just to “facilitate” a drug crime but “in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances,” which suggests a stronger connection.
The Institute for Justice, the public interest law firm representing the Caswells, argues that the federal “equitable sharing” program helps police evade state laws aimed at preventing forfeiture abuses. A 2011 study reported in the Journal of Criminal Justice found that the stricter a state’s forfeiture law, the more likely police are to enlist federal help.
Carmen Ortiz, the U.S. attorney for Massachusetts, says taking away the Caswells’ livelihood and retirement security sends an “important deterrent message” to “others who may turn a blind eye to crime occurring at their place of business.” But to anyone troubled by the guilty-until-proven-innocent rules of civil forfeiture, it looks a lot like legalized larceny.
The record shows that the Property was identified as the subject of a potential federal forfeiture by Vincent T. Kelley, a Special Agent in the asset forfeiture division of the federal Drug Enforcement Agency (“DEA”). (See Cl. Ex. C at 5-7). Agent Kelley’s primary responsibility at the DEA consists of identifying properties for forfeiture. (Id. at 5-6). Typically, he learns about such properties from local police departments, which contact him directly. (Id. at 7). On other occasions, he reads about properties in news reports, and contacts the local police department to obtain additional information. (Id. at 7-9). With respect to the Motel Caswell, Agent Kelley believes he first learned about the Property in 2008 by reading about it on the Internet or in the newspapers. (Id. at 10; CF ¶ 41). He then contacted an officer in the Tewksbury Police Department to discuss the Property. (Cl. Ex. C at 20-21).
The record does not describe the substance of any specific conversations that Agent Kelley had with members of the Tewksbury Police Department prior to the filing of the complaint in this action. (See id. at 64-66). However, according to Agent Kelley, he typically informs local police departments about the DOJ’s equitable sharing program, including the policy which allows such agencies to receive up to 80 percent of the net proceeds of a forfeiture. (Id. at 65-66).
One might wonder at the security of any piece of private property, when an agent of a vast and remote bureaucracy can initiate a forfeiture proceeding upon merely reading stories on the internet, coopting the protections of local law enforcement though payoffs that are uncontrolled and unregulated. The framers of the Constitution (particularly the framers from Massachusetts) found similar innovations offensive and articulated cogent arguments that still resonate. Consider the responses of the colonists when they learned that the new governor of Massachusetts (along with judges and prosecutors), would draw salary from the Crown:
“In 1772, the new Governor of Massachusetts, Thomas Hutchinson, announced that his salary and those of Massachusetts judges would thenceforth be paid by the Crown. This was bitterly opposed by the colonists, for it would render the officials concerned free from local control.AtBoston Town Meeting, the Governor was questioned about the matter and replied in a letter that said, in effect, that it was none of the colonists’ business. Adams then moved that a Committee of Correspondence be appointed “to state the Rights of the Colonists and of this Province in particular, as men, as Christians, and as subjects; and to communicate the same to the several towns in this Province, and to the World.” The Committee prepared a report in two parts: the first the Rights of the Colonists, the second a List of Infringements and Violations of Rights. Sam Adams himself played the major role in the draft of this document.
The Boston document is noteworthy as an indication of the rights considered fundamental by the colonists on the eve of the Revolution, stated both in affirmative form (in the Rights of the Colonists) and in negative form (in the List of Infringements).”
Bernard Schwartz, The Great Ri
ghts of Mankind: A History of the Bill of Rights(New York: Oxford University Press, 1977), p. 60-61.
In the State of Nature, Men may, as the Patriarchs did, employ hired Servants for the Defense of their Lives, Liberties and Property, and they should pay them reasonable Wages. Government was instituted for the purposes of common Defense, and those who hold the Reins of Government have an equitable natural Right to an honorable Support from the same Principle “that “the Laborer is worthy of his Hire”; but then the same Community which they serve ought to be the Assessors of their Pay.
Governors have no Right to seek and take what they please; by this, instead of being content with the Station assigned them, that of honorable Servants of the Society, they would soon become Absolute Masters, Despots, and Tyrants. Hence, as a private Man has a Right to say what Wages he will give in his private Administration of public Affairs. 2 And in both cases, more are ready generally to offer their Service at the proposed and stipulated Price than are able and willing to perform their Duty.
[2.Referring to the issue that spurred the creation of the Boston Committee: that the salaries of the governor, lieutenant governor, and judges would be paid directly by Britain and not by the colonial assembly, thus eliminating the assembly’s “power of the purse.”]
In short, it is the greatest Absurdity to suppose it in the Power of one or any Number of Men, at the entering into Society, to renounce their essential natural Rights or the Means of preserving those Rights, when the grand End of civil Government, from the very Nature of its Institution, is for the Support, Protection and Defense of those very Rights: The principal of which, as is before observed, are Life, Liberty, and Property. If Men through Fear, Fraud, or Mistake should in Terms renounce or give up any essential natural Right, the eternal Law of Reason and the grand End of Society would absolutely vacate such Renunciation: the Right to Freedom being the Gift of GOD ALMIGHTY, it is not in the Power of Man to alienate this Gift and voluntarily become a Slave. Boston Committee of Correspondence, I. The Rights of the Colonists, The “Boston Pamphlet,” 1772, publ. 1773.
6thly. The Revenue arising from this Tax . . . has been in part applied to the most destructive purposes. It is absolutely necessary in a mixt Government like that of this Province that a due proportion or balance of Power should be established among the several Branches of the Legislative. . . . In particular it has always been held that the dependence of the Governor of this Province upon the General Assembly for his support [i.e., salary] was necessary for the preservation of this Equilibrium; nevertheless his Majesty has been pleased to apply Fifteen Hundred Pounds Sterling annually out of the American Revenue for the support of the Governor of this Province independent of the Assembly, . . .
And we look upon it highly probable, from the best intelligence we have been able to obtain, that not only our Governor and Lieutenant Governor, but the Judges of the Superior Court of Judicature, as also the King’s Attorney and Solicitor General are to receive their Support from this grievous tribute. This will, if accomplish’d, complete our Slavery. For if Taxes are to be raised from us by the Parliament of Great Britain without our consent, and the Men on whose opinions and decisions our Properties, Liberties, and Lives in a great measure depend, receive their Support from the Revenues arising from these Taxes, we cannot, when we think on the depravity of mankind, avoid looking with horror on the danger to which we are exposed! . . . BostonCommittee of Correspondence, II. A List of Infringements & Violations of Rights, The “Boston Pamphlet,” 1772, publ. 1773.But, when in Addition to the repeated inroads made upon the Rights and Liberties of the Colonists, and of those in this Province in particular, we reflect on the late extraordinary Measure in affixing Stipends, or Salaries from the Crown to the Offices of the Judges of the Superior Court of Judicature, making them not only entirely independent of the People, whose Lives and Fortunes are so much in their Power, but absolutely dependent on the Crown (which may hereafter be worn by a Tyrant) both for their Appointment and Support, we cannot but be extremely alarm’d at the mischievous Tendency of this Innovation, which in our Opinion is directly contrary to the Spirit of the British Constitution, pregnant with innumerable Evils, & hath a direct Tendency to deprive us of everything valuable as Men, as Christians, and as Subjects entitled by the Royal Charter to all the Rights, Liberties and Privileges of native Britons.
Such being the critical State of this Province, we think it our Duty on this truly distressing Occasion to ask you, What can withstand the Attacks of mere Power? What can preserve the Liberties of the Subject, when the Barriers of the Constitution are taken away?
Boston Committee of Correspondence, III. A Letter of Correspondence to the Other Towns, The “Boston Pamphlet,” 1772, publ. 1773
*National Humanities Center Boston Committee of Correspondence, The “Boston Pamphlet,” 1772, publ. 1773, excerpts__ National Humanities Center, 2010: nationalhumanitiescenter.org/
pds/. The Votes and Proceedings of the Freeholders and Other Inhabitants of the Town of Boston, In Town Meeting Assembled, According to Law, Boston, 28 October 1772; Early American Imprints, Doc. 12332; American Antiquarian Society with Readex/Newsbank; permission pending for digital image. Reprinted in The Writings of Samuel Adams, ed. Harry Alonzo Cushing, (New York: G. P. Putnam’s Sons, 1904-1908), Vol. II: 1770-1773, pp. 350-374. Spelling and punctuation modernized by NHC for clarity. Numbered footnotes and bracketed annotations added by NHC. Complete image credits atnationalhumanitiescenter.org/ pds/makingrev/imagecredits.from http://www. htm…..Retrieved nationalhumanitiescenter.org/ pds/makingrev/crisis/text6/ bostonpamphlet.pdf