Constitution Society

6900 San Pedro #147-230

San Antonio, TX 78216

214/839-5586



417 Springfield St #118

Agawam, MA 01001

413/786-6802



http://www.the-spa.com/constitution/

email: jon.roland@the-spa.com, jdr@crl.com

95/11/025



C-SPAN

America and the Courts

202/393-3346F



     This is to comment in advance on the upcoming program on civil

forfeitures. In your previews, Stefan Herpel, attorney for Mrs. John

Bennis, cites two constitutional clauses which such civil forfeitures

violate: the "due process" clause and the "takings" clause. This is

to suggest that there are several additional ways in which such

procedures violate the U.S. Constitution.

     First, it is a violation of the Seventh Amendment, which

prescribes  a right to a jury trial for civil cases the value of

which exceeds twenty dollars. (That does not mean twenty 1995

dollars, but the current value of the amount of gold that twenty 1789

dollars would have bought.)

     Second, it is a violation of the separation of powers clauses.

Such procedures effectively delegate judicial and even legislative

powers to executive officials, which is implicitly forbidden by the

Constitution. The arresting officer, or agent of an agency, not only

renders a judgement concerning the ownership and criminal source of

the  item or the funds used to acquire it, but exercises legislative

authority, in many cases, to create new "crimes" that otherwise have

no legislative basis.

     Third, civil forfeiture, especially that done under federal RICO

and other statutes, violates a fundamental principle of law: that

only persons may be a party in a legal action. The form of such

procedures, when they are committed to legal documentation, is a

civil suit against the item seized, which is forfeited, as a default

judgement, when the item fails to answer the suit. The owner of the

item is ruled not to have standing to intervene in the case, as the

item has not appointed the owner to represent it, nor has the owner

been recognized as the guardian or principal for the item. It is a

testimony to the corruption of our legal system that the absurdity of

this theory does not cause all such procedures to be thrown out of

the first courts that hear them.



     Now, concerning due process itself, such actions are in

violation in several ways:



     First, due process requires determination by a court of

competent jurisdiction, after hearing the arguments and evidence of

each side, and, if the ruling is guilt, the imposition of specific

disabilities of rights, such as a fine in a certain amount, or a

sentence of incarceration for a certain number of years. Any fine is

a debt, and must be payable in legal tender, and seizure and

forfeiture may only be used if payment in legal tender is not made,

and then, the items seized must be sold at public auction and any

surplus, after paying reasonable costs, returned to the offender.



     Second, such forfeitures constitute several violations of law

themselves. First, in many cases the items seized are just

appropriated by the officers or agents for their personal use or for

the use of their agencies, without legislative authorization or

appropriation. This is unconstitutional, and, if the items are

appropriated by individuals, it constitutes theft. Second, such

forfeitures constitute violations of 18 USC 242, Deprivation of 

Rights under Color of Law, and perhaps of 18 USC 241, Conspiracy to

Violate Rights, and 18 USC 2382, Misprision of a Felony.









Jon Roland, Director



PS: I initially tried to fax this message to you, but your fax number,

202-393-3346, did not answer during the period from 2:00-2:30 PM ET,

Saturday, Nov. 25. You advertise that the number is 24-hour. Perhaps

someone needs to check it.