Evil in the American Justice System
Case 2:
Zero Tolerance & Asset Forfeiture
Discussion of Case:
   "Zero Tolerance" was a creation of Commissioner of Customs William Von Raab.  Von Raab and others in the Reagan Administration felt frustrated by an inability to reduce seriously the supply of illicit  drugs.  The decision was made to lower demand by raising the penalties for drug users.  Under Zero Tolerance, drug users undeterred by the often insignificant risk of imprisonment now had to weigh a more substantial risk of losing valuable property. 

    Before the Zero Tolerance policy took effect on March 21, 1988, Coast Guard personnel finding small amounts of marijuana in routine checks of crafts usually just tossed it overboard.  Customs officials handled discoveries of small amounts of drugs in a similar way.  Suddenly, things got tough.

Kevin Hogan and a crew of three headed for Alaska in a $ 140,000 fishing boat he had just purchased in Washington. The boat developed engine problems along the route and was forced to stop briefly in Canada for repairs. The Canadian stop was reported to customs agents in Ketchikan, who searched the boat. The search revealed that one of Hogan's three crew members had 1.7 grams of marijuana in his jacket. Customs officials acknowledged that Hogan knew nothing about the marijuana aboard his boat, the Hold Tight

Under the "Zero Tolerance" program initiated less than two months earlier, even small amounts of drugs could result in arrests and forfeitures of property. Customs agents decided to seize Hogan's boat. Hogan had planned to use the boat during Alaska's twenty-four hour halibut season later that month. The halibut catch could have netted Hogan the $ 40,000 he needed to pay the mortgage on the Hold Tight. Hogan said as a result of the seizure, "I stand to lose it all in this deal," referring to everything for which he had worked during the prior fifteen years. In Hogan's hometown of Homer, Alaska, more than 1,000 people signed petitions supporting Hogan.  The city council passed a resolution urging that Customs officials show "some sense of proportionality" in the Hogan case. 

The Customs Service expressed its position in a letter written by  John Elkins, acting director of the Service's regulatory procedures and penalties division in Washington, D.C., to the Customs Service's Anchorage office.  Elkins said that it is not enough to warn crew members of the drug program, as Hogan said he had done. Elkins contended that Hogan was negligent in not detecting the marijuana: "It is our view that Kevin Hogan was, as owner and master, responsible for the actions of crew members." 

    Asset forfeiture was an enforcement tool well before Zero Tolerance.  Zero Tolerance, however, expanded the use of civil forfeiture to cases involving small quantities of drugs.  Previously, only confiscation of contraband was likely to result from the discovery of drugs.  Civil forfeiture in general has been a very popular tool among law enforcement personnel.  There is added incentive to use the forfeiture penalty because profits from the forfeiture program are channelled back to law enforcement programs. 

   Less than two months after Zero Tolerance took effect on March 21, 1988, the Customs Service had seized over 700 vehicles, and the Coast Guard had seized twenty-seven boats, including Hogan's Hold Tight. n136 Hogan's case was not the only case involving the seizure of valuable commercial property.  On the Canadian border at Blaine, Washington, Customs officers seized a $ 100,000 rig when they discovered a marijuana cigarette in the cab.  In Key West, Florida, the Coast Guard seized a seventy-three-foot fishing boat and sold its eight-day haul of fish for $ 5,827, after officials discovered three grams of marijuana seeds and stems on board.  The most valuable property seized in the first month of Zero Tolerance's operation was the $ 2.5 million yacht Ark Royal. The Coast Guard found one-tenth of an ounce of marijuana aboard the chartered boat.  As if to prove that Zero Tolerance really meant zero tolerance, officials have also seized property in cases where only minuscule quantities of drugs had been discovered.  One woman in Washington had her car impounded after Customs inspectors used tweezers to remove  one-tenth of a gram of marijuana from the bottom of her purse. 

  Targets of Zero Tolerance may regain their property eventually.  In some cases, officials apparently have recognized the injustice involved and returned property after payment of a fine and seizure fee.  In other cases, those whose property has been seized can only hope that the government fails to prove by a preponderance of the evidence that the seized property was either purchased with drug profits or used in committing a drug crime.  Acquittal in a criminal case does not affect the government's standard of proof in a later forfeiture suit. 

   The seizure of Kevin Hogan's fishing boat at the height of the Alaska fishing season because a crew member possessed marijuana was a penalty disproportionate to his crime.  Even if one recognizes a duty of boat owners to hire drug-free employees, the failure to do so certainly registers a rather low level of blameworthiness.  Scant evidence exists to show marijuana to be a significant long-term health risk. n143 Although marijuana causes reduced mental and physical levels of functioning, it is absurd to argue that pot in the pocket of a fisherman represents the public risk that it might, say, in the hands of a United Airlines 747 pilot.  A $ 140,000 fine and possible bankruptcy is not an appropriate penalty for inadequate attention to a crew member's drug use.  There will be close calls in forfeiture cases, but this is not one of them. 

   Only thoughtlessness, the handmaiden of evil, can explain a gross injustice like the seizure of the Hold Tight. It is easy for "generals" in the War on Drugs, such as Commissioner Van Raab, to avoid considering how their drug enforcement policies may affect a fisherman 5000 miles away; their focus remains on larger goals, their preoccupation with the movement of pieces on war room maps.  More difficult to explain are the actions of "lieutenants" in regional offices.  Their blindness to injustice may stem from a belief that aggressive pursuit of forfeiture cases will advance their careers, or it may be the result of benefitting too directly from the windfall proceeds of the forfeitures they authorize.