13 Ethical Considerations

• Library: Asset Forfeiture: Practice and Procedure in State and Federal Courts (ABA) (2014 Ed.)

13 Ethical Considerations

A. Introduction

"License to Steal-Take It Away"¹"Seizure of Assets Leaves Casualties in War on Drugs"²"Sheriff Under Investigation—State Looking into Misuse of Drug Probe Money"³

These headlines are typical of national press articles that are critical of the asset forfeiture laws.

The U.S. Department of Justice Executive Office for Asset Forfeiture published a report in July 1993 entitled Summaries of Federal Asset Forfeiture Cases Criticized by the News Media, which revealed that the complaints came from every part of the country and included such national publications as Newsweek, The New York Times, The Washington Post, Los Angeles Times, and The Wall Street Journal as well as broadcast media presentations.⁴ This chapter will review the ethical concerns involving asset forfeiture litigation and discuss national standards of conduct for the asset forfeiture program.

B. Areas of Concern

Critics of asset forfeiture programs tend to focus on three basic areas: 1) corruption, 2) fairness, and 3) accountability. Each is discussed separately below.⁵

Corruption is concerned with dishonest acts by law enforcement officers tempted by greed and the allure of large cash seizures to commit unlawful acts to obtain money for their personal use or their agency. The conviction of 19 Los Angeles sheriffs deputies from the elite Major Violators Two team between 1990 and 1992 in the federal money-skimming operation known as Operation Big Spender is a tragic example of this type of corruption.⁶ Other allegations are that illegal seizures are condoned,⁷ and that law enforcement agencies are more interested in generating money than in crime detection and prevention.⁸

Prosecutors are not immune from allegations of corruption in connection with asset forfeiture cases. In 1996, Somerset County New Jersey prosecutor Nicholas Bissell, Jr., was convicted of federal charges of fraud and extortion, several involving misconduct in relation to forfeiture cases, and committed suicide rather than surrender to federal authorities.⁹ Filing cases with insufficient evidence in the hope that the claimant will default on the forfeiture case,¹⁰ coercing settlements with claimants,¹¹ and plea bargaining a forfeiture case to reduce a criminal charge ¹² are some of the charges leveled at prosecutors.

Another controversial aspect of asset forfeiture cases is the potential unfairness that they have on innocent owner property rights. The intent of civil asset forfeiture is not to punish the truly innocent owner, and both federal and state statutes have provisions to protect them, but what process must innocent parties go through in order to preserve their interests? The denial of a claim for early release of property to bona fide innocent owners and lienholders can seriously impact property rights by depriving the owner of the use of the asset, allowing it to depreciate and incur storage and maintenance costs, and requiring the owners to hire lawyers at great expense to get their property back.¹³ The problem of fairness has received attention and criticism in the national and local press.¹⁴

The final issue of accountability concerns the auditing of the expenditures of asset forfeiture funds and the use of property, such as vehicles that have been awarded to agencies for law enforcement use. Charges are asserted that appropriate accounting and auditing practices are not followed, unauthorized expenditures are made, and established inventory procedures are not observed.¹⁵

C. Ethical Guidelines

In 1993, in response to the mounting public criticism and concerns, two sets of national guidelines were promulgated for the development and conduct of asset forfeiture programs.

The U.S. Department of Justice Executive Office for Asset Forfeiture began drafting a set of guidelines in the latter part of 1991¹⁶ that was published in 1993 as the National Code of Professional Conduct for Asset Forfeiture.¹⁷ It consists of 10 principles and is known by the federal agencies as the "ten commandments." The National Code of Professional Conduct for Asset Forfeiture is now published in A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, by the U.S. Department of Justice, and all state and local agencies that intend to participate in the federal asset forfeiture sharing program are required to sign an annual certification that they are in compliance with the Code.¹⁸ In 2000, the National Code was amended to add article II prohibiting racial profiling.¹⁹ See Table 13-1.

In March 1993, the National District Attorneys Association (NDAA) issued Guidelines for Civil Asset Forfeiture. It was drafted by a task force committee of nine prosecutors selected from across the country and was unanimously adopted by the full board of the NDAA. The guidelines contain the following preamble that explains the purpose of asset forfeiture:

Crime in America is a multi-billion [dollar] industry that has a devastating effect on legitimate economic enterprise by diverting money from lawful commerce while rewarding and financing ongoing illegal activity. Asset forfeiture destroys the money base necessary for the continuation of illegal enterprises and attacks the economic incentive to engage in organized criminal activity. Asset forfeiture also deters individuals from using their property to facilitate criminal activity. Forfeiture programs then rededicate the money from illegal activity to the public good. The National District Attorneys Association strongly believes that law enforcement agencies and prosecutors should aggressively pursue forfeiture actions to eliminate the instrumentalities of crime and to confiscate the proceeds from criminal acts. To encourage such efforts it is important that forfeiture laws continue to allow most of the proceeds from forfeitures to be returned to the law enforcement community responsible for initiating these actions to be used to further their law enforcement efforts. These guidelines are designed to assist in the exercise of prosecutorial discretion in administering and enforcing statutorily authorized forfeiture programs.

The NDAA Guidelines contain 15 general standards and procedures to assist in the conduct of asset forfeiture programs.

Some states have adopted the National Code of Professional Conduct for Asset Forfeiture as part of their state forfeiture statute. For example, in September 1993, the California legislature enacted a new state forfeiture law, Stats.1994, C. 314 (A.B.114), Sec 1, and incorporated 10 ethical standards into a new section located at California Health & Safety Code §11469 entitled Guidelines for Utilization of Seizure and Forfeiture Laws. Other states that have taken similar action include Colorado,²⁰ Florida,²¹ Iowa, ²² Louisiana, ²³ and New Hampshire.²⁴

D. Comparison of Ethical Guidelines

A comparison of the federal National Code of Professional Conduct for Asset Forfeiture, the NDAA Guidelines for Civil Asset Forfeiture and California Health & Safety Code § 11469 is found in Table 13-1 (pages 309-314). It reveals some interesting contrasts among the three ethical standards that will be discussed in the next section of this chapter.

The federal National Code of Professional Conduct for Asset Forfeiture has adopted standards to respond to the issues of corruption, fairness, and accountability, which are the three basic areas for criticism of asset forfeiture laws.

To combat corruption, the National Code emphasizes that law enforcement is the principal objective of forfeiture, not revenue (I.); that employment and salary shall not be dependent on the level of seizures achieved (III.); and seizing agencies should avoid any appearance of impropriety in the sale or acquisition of forfeited property (X.).

To encourage fairness, the National Code forbids racial profiling. (II). It also provides for strict compliance with legal requirements concerning seizure practice and procedure and encourages a judicial finding of probable cause whenever possible, and mandates it in all cases of real property. (IV.) If there is no judicial finding of probable cause, the seizure must be approved in writing by a prosecuting or agency attorney or by a supervisory-level official. (V.) Prompt notice to interest holders, expeditious release of seized property where appropriate, and prompt resolution of innocent owner claims are also advocated (VI.).

Professionalism and accountability are promoted in the National Code by four provisions that require agencies to maintain policy and procedure manuals (VI.); deposit seized funds in separate accounts subject to financial audits (VIII.); protect and preserve the value of seized property (IX.); and establish internal controls for forfeited property retained for law enforcement use (VII.).

Thirteen of the 15 NDAA Guidelines are comparable to the U.S. Department of Justice National Code of Professional Code for Asset Forfeiture, see Table 13-1, but there are a few unique provisions. The National Code encourages multiple agencies to work together to advance the public interest (2), mandates annual budgeting without regard to anticipated or projected asset forfeiture revenue (14), forbids the use of seized property prior to forfeiture absent a judicial order (6), prohibits agency employees or family members from purchasing forfeited property (13), and discourages dismissal of criminal or forfeiture actions as part of plea bargaining (10).

Table 13-1 Comparison of Ethical Codes for Asset Forfeiture

U. S. Dept of Justice National Code of Professional Conduct for Asset Forfeiture	National District Attorneys Association Guidelines for Civil Asset Forfeiture	California Health & Safety Code § 11469
I. Law enforcement is the principal objective of forfeiture. Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing...