CONTINUED
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.
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