Pubdate: Wed, 23 May 2012
Source: Courier-Journal, The (Louisville, KY)
Copyright: 2012 The Courier-Journal
Contact:  http://www.courier-journal.com/
Details: http://www.mapinc.org/media/97
Author: George Will
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

GOVERNMENT PIRATES SET OUT TO STEAL A LIVELIHOOD

Family-Owned 'Budget' Motel Threatened With Civil Forfeiture for 
Crimes of Guests

TEWKSBURY, Mass. -- Russ Caswell, 68, is bewildered: "What country 
are we in?" He and his wife Pat are ensnared in a Kafkaesque 
nightmare unfolding in Orwellian language.

This town's police department is conniving with the federal 
government to circumvent Massachusetts law -- which is less 
permissive than federal law -- in order to seize his livelihood and 
retirement asset. In the lawsuit titled "United States of America vs. 
434 Main Street, Tewksbury, Massachusetts," the government is suing 
an inanimate object, the motel Caswell's father built in 1955. The 
U.S. Department of Justice intends to seize it, sell it for perhaps 
$1.5 million and give up to 80 percent of that to the Tewksbury 
Police Department, whose budget is just $5.5 million. The Caswells 
have not been charged with, let alone convicted of, a crime. They are 
being persecuted by two governments eager to profit from what is 
antiseptically called the "equitable sharing" of the fruits of civil 
forfeiture, a process of government enrichment that often is 
indistinguishable from robbery.

The Merrimack River Valley near the New Hampshire border has had more 
downs than ups since the 19th century, when the nearby towns of 
Lowell and Lawrence were centers of America's textile industry. In 
the 1960s the area briefly enjoyed a high-tech boom. Caswell's 
"budget" motel, too, has seen better days, as when the touring 
Annette Funicello and the Mouseketeers checked in. In its sixth 
decade the motel hosts tourists, some workers on extended stays and 
some elderly people who call it home. The 56 rooms rent for $56 a 
night or $285 a week.

Since 1994, about 30 motel customers have been arrested on drug 
dealing charges. Even if those police figures are accurate -- the 
police have a substantial monetary incentive to exaggerate -- these 
30 episodes involved less than five one-hundredths of 1 percent of 
the 125,000 rooms Caswell has rented over those more than 6,700 days. 
Yet this is the government's excuse for impoverishing the Caswells by 
seizing this property, which is their only significant source of 
income and all of their retirement security.

The government says the rooms were used to "facilitate" a crime. It 
does not say the Caswells knew or even that they were supposed to 
know what was going on in all their rooms all the time. Civil 
forfeiture law treats citizens worse than criminals, requiring them 
to prove their innocence -- to prove they did everything possible to 
prevent those rare crimes from occurring in a few of those rooms. 
What counts as possible remains vague. The Caswells voluntarily 
installed security cameras, they photocopy customers' identifications 
and record their license plates, and turn the information over to the 
police, who have never asked the Caswells to do more.

The Caswells are represented by the Institute for Justice, a 
libertarian public-interest law firm. IJ explains that civil 
forfeiture is a proceeding in which property is said to have acted 
wrongly. This was useful long ago against pirates, who might be out 
of reach but whose ill-gotten gains could be seized. The Caswells, 
however, are not pirates.

Rather, they are victims of two piratical governments that, IJ 
argues, are violating the U.S. Constitution twice. They are violating 
the Eighth Amendment, which has been construed to forbid "excessive 
fines" that deprive individuals of their livelihoods. And the federal 
"equitable sharing" program violates the 10th Amendment by vitiating 
state law, thereby enabling Congress to compel the states to adopt 
Congress' policies where states possess a reserved power and primary 
authority -- in the definition and enforcement of the criminal law.

A federal drug agent operating in this region roots around in public 
records in search of targets -- property with at least $50,000 
equity. Caswell thinks that if his motel "had a big mortgage, this 
would not be happening."

"Equitable sharing" -- the consensual splitting of ill-gotten loot by 
the looters -- reeks of the moral hazard that exists in situations in 
which incentives are for perverse behavior. To see where this leads, 
read IJ's scalding report "Policing for Profit: The Abuse of Civil 
Asset Forfeiture" (http://ow.ly/aYME1), a sickening litany of law 
enforcement agencies padding their budgets and financing boondoggles 
by, for example, smelling, or imagining to smell, or pretending to 
smell, marijuana in cars they covet.

None of this is surprising to Madisonians, which all sensible 
Americans are. James Madison warned (in Federalist 48) that 
government power "is of an encroaching nature." If unresisted, it 
produces iniquitous sharing of other people's property.
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