The Right Opinion

Drug Dealing and Legal Stealing

By Jacob Sullum · Nov. 21, 2012

At the Cosmopolitan, a luxury hotel and casino in Las Vegas, “just the right amount of wrong” is the naughty fun you get for $200 a night. At the $57-a-night Motel Caswell in Tewksbury, Mass., just the right amount of wrong is what the federal government says it needs to take the business from the family that has operated it for 57 years.

That amount, it turns out, is tiny. During a recent trial before a U.S. magistrate judge in Boston, a federal prosecutor cited one heroin overdose and 14 incidents in which guests or visitors were arrested for drug crimes at the motel from 1994 through 2008 – a minuscule percentage of the 200,000 or so room rentals during that period – to show the business is a “dangerous property” ripe for seizure.

As Russell Caswell, the motel's 69-year-old owner, explained to The Associated Press, “They are holding me responsible for the actions of a few people who I don't know and I've never met before, people who rent a room.” Welcome to the topsy-turvy world of civil forfeiture, where property can be guilty even when its owner is innocent.

Under federal law, property used to “facilitate” a drug crime is subject to forfeiture. In 2000, Congress added a safeguard aimed at preventing exactly the sort of injustice Caswell faces: An owner can stop a forfeiture if he shows, by “a preponderance of the evidence,” that he did not know about the illegal activity or that, once he discovered it, he “did all that reasonably could be expected under the circumstances to terminate such use of the property.”

Caswell, whose father built the motel in 1955, has not been accused of any wrongdoing, and the local Motel 6, Fairfield Inn, Wal-Mart and Home Depot have had similar problems with drug activity. But the government argues that Caswell was “willfully blind” to drug dealing and could have done more to prevent it.

Caswell, who has been running the motel since 1983, says he has no way of knowing what his customers are doing behind closed doors. He has always cooperated with the police, calling them to report suspicious activity and offering them free rooms for surveillance and sting operations.

In 2009, he got his reward: a forfeiture notice. Police had never suggested additional steps he could take to discourage crime or warned him that the motel – which supports him, his mother, his wife, their son, their daughter-in-law and their granddaughter – could be at risk.

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration, who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Under Massachusetts law, by contrast, police would have received only half the loot, and forfeiture may have been harder. State law says a seized property has to be used not just to “facilitate” a drug crime but “in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances,” which suggests a stronger connection.

The Institute for Justice, the public interest law firm representing the Caswells, argues that the federal “equitable sharing” program helps police evade state laws aimed at preventing forfeiture abuses. A 2011 study reported in the Journal of Criminal Justice found that the stricter a state's forfeiture law, the more likely police are to enlist federal help.

Carmen Ortiz, the U.S. attorney for Massachusetts, says taking away the Caswells' livelihood and retirement security sends an “important deterrent message” to “others who may turn a blind eye to crime occurring at their place of business.” But to anyone troubled by the guilty-until-proven-innocent rules of civil forfeiture, it looks a lot like legalized larceny.



John in Minneapolis, MN said:

I am just wondering. How much “outrage” would this motel owner have received if he turned away customers that he thought may be a problem? I’ll bet the ACLU would have filed numerous suits and he would be flooded with discrimination lawsuits.

Wednesday, November 21, 2012 at 9:00 AM

wjm in Colorado said:

Welcome to the USSA, Comrades, FORWARD.

Wednesday, November 21, 2012 at 9:40 AM

Kurt.S in Missouri said:

Greed and theft, the new America.

Wednesday, November 21, 2012 at 12:16 PM

Wayne in Hinesville, GA said:

Just goes to prove the point that we really don't own anything that the government can't take away. All you have to do is look at most town and city ordinances that tell you what you can or can't do with your own property. Socialism, Marxism, or Communism, take your pick, we lose our rights no matter which one is in power.

Wednesday, November 21, 2012 at 1:36 PM

Capt. Call in New Mexico said:

Tyranny!! What the government is trying to do is wrong. Period. This kind of bullying is a result of leftist/communist/progressive governance. And to think that people just voted to continue this tyranny!!

Wednesday, November 21, 2012 at 10:32 PM

JD in TX replied:

Haha,'s progressives fault that this law was created under the guise of the War on Drugs by Ronald Reagan. Damn that commie, Reagan!

Tuesday, January 29, 2013 at 11:16 AM

Army Officer (Ret) in Kansas said:

Let us not forget that the "War on Drugs" that sparked our outrageous civil forfeiture laws was started by that hard-left Democrat... Richard Nixon.

Wait... Richard Nixon!?!?!?!

Every administration since then has vigorously pursued it: Democrat... Republican... it makes no difference.

Heaven forbid the sheeple had as much libertarian backbone as the founders - we could put a stop to the unholy alliance between statist politicians (of both major parties), drug cartels, and drug enforcement agencies. Their fake war benefits them and screws everyone else.

People like the Caswells are "acceptable collateral damage" in this phony war.

Things like THIS are why smart people understand that the real fight is between statism and liberty - rather than the "Democrat versus Republican" sideshow that fools people into thinking THAT is where the real battle lies.

Republicans say, "The government should stay out of MY gun cabinet, MY commercial activities, and MY church - but it should be rummaging through YOUR video cabinet, YOUR medicine cabinet, and YOUR bedroom."

Democrats say, "The government should stay out of MY bedroom, MY video cabinet, and MY church - but it should be rummaging around YOUR gun cabinet, YOUR commercial activities,YOUR medicine cabinet, and YOUR church."

Libertarians say, "Government should stay out of my affairs entirely except upon credible evidence that I have initiated force or fraud - and the same applies to you."

Both Republicans and Democrats support the drug laws and civil forfeiture laws that result in innocent people like the Caswells losing their livelihood - and sometimes their lives. Libertarians oppose them and the 10,000,000 laws like them - it's really as simple as that.

Thursday, November 22, 2012 at 11:38 AM