Have you broken the law today? Don’t be too quick to say no.
In fact, the country’s vast array of rules, statutes and regulations – local, state and federal – defies tabulation, like a precise figure for grains of sand. And the number continues to grow as each year thousands of new state and municipal laws take hold across the country. Meanwhile, the Code of Federal Regulations has expanded to more than 174,000 pages in 2013, up from about 71,000 in 1975.
Even the criminal codes – supposedly more targeted due to constitutional restraints – aren’t immune. An American Bar Association task force concluded in 1998 that, “So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”
The situation persists today. Boston civil liberties lawyer Harvey Silverglate argues that the average American now unknowingly commits as many as three felonies a day thanks to the throng of vague and overly broad statutes or regulations that can ensnare otherwise law-abiding citizens engaged in routine activity. “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” retired Louisiana State University law professor John Baker recently said. “That is not an exaggeration.”
Russ Caswell would agree. Mr. Caswell owns the Motel Caswell, a business his father built in the late 1950s in Tewksbury, Mass. In 2009, the federal government moved to seize his inn, arguing that a tiny percentage of guests over the previous 15 years had committed drug-related offenses on the property.
Mr. Caswell was never charged with any crime. His business was in good standing with municipal licensing authorities. He had “zero warning” that his livelihood was in danger until he was served with the forfeiture notice. “They never accused me of anything,” Mr. Caswell, now 71, said recently. “Never said do this, do that. … It was something you’d expect to happen in some Third World country, not in America.”
What Mr. Caswell didn’t know is that under civil forfeiture statutes, law enforcement officials have widespread authority to seize private property even if the owner is never formally accused of breaking the law. There is no “presumption of innocence,” as in criminal proceedings – instead, the property itself is “charged” with wrongdoing and the burden rests with the owner to prove otherwise, a costly and difficult task.
These statutes also allow law enforcement agencies to pocket a portion of the profits derived from such seizures, creating an obvious and perverse incentive for abuse. In the case of the Motel Caswell, prosecutors targeted the establishment after a special agent with the DEA flagged the motel while checking a newspaper article about an arrest at the property. He then checked to determine whether the property had a mortgage and its total value ($1.5 million), before recommending it to his superiors for forfeiture.
Despite settlement offers from the government, Mr. Caswell fought back. “I was beyond mad,” he said. After a bench trial in November 2012, a federal magistrate last year ruled resoundingly in his favor. Not only were the government’s allegations against the property without merit, the judge held, authorities had never even attempted to work with Mr. Caswell to address the purported problem.
Today, Mr. Caswell is in the process of selling his motel. He thinks he may have found a buyer. The four-year ordeal extracted its toll. “Even now,” he said, “I wonder how something like this ever happened in the first place.”
Across the country in Washington state, Robin Farris shares Mr. Caswell’s frustration. In 2010, Ms. Farris, a retired Naval officer and political neophyte, launched a campaign to recall the Pierce County assessor-treasurer for mistreating employees, among other matters. But as she tried to exercise her First Amendment rights she found herself caught in the maw of restrictive campaign finance and disclosure laws – even facing fines and jail.