Speech #930041751

I doubt that the drafters of this legislation intended such a harsh consequence upon a first citation. but it is authorized nevertheless. and stands as a further contradiction of the understanding of the bill voiced by the witnesses from the Department of Justice. In summary. with respect only to the circumstances under which a seizure and forfeiture is authorized. it is charitable to characterize the bill as unclear. Although I prefer to remedy its shortcomings by striking the entire forfeiture section. if my amendment fails. it is hoped that its supporters will make abundantly clear the intention of Congress that a seizure and forfeiture is only authorized for acts. not omissions. that the acts result in a criminal prosecution. that the actor have an interest in the asset forfeited. and that the forfeiture occurs only after a final judgment of conviction of the actor. il In attempting to provide a useful tool for law enforcement officials to discourage the smuggling and referrel of illegal aliens for employment by authorizing the seizure and forfeiture of vessels. vehicles and aircraft used in furtherance thereof. the drafters of this legislation have created certain classifications which border upon being capricious. First. seizure and forfeiture is only permissible in the case of a vessel. vehicle. or aircraft. Assets of this character are not instruments uniquely necessary to the commission of the wrong which Congress seeks to prevent. The seizure of a still. perhaps. would substantially deter a moonshiner. But. in a modern society. an automobile. for example. is a fungible commodity. Perhaps our intent is to get at those assets actually used for the conveyance of illegal aliens in furtherance of the specified violations. We have not so limited the forfeiture authority. but if we were to do so. it would hardly be a rational means of achieving the legitimate objects of the legislation. given the fungible character of the assets in question. and the ease with which they can be replaced. Second. seizure and forfeiture may occur in the case of a smuggler. a referrer for a fee. or a transportedfor unexplained reason the culpable employer. at whom this legislation is also clearly aimed. is excluded. Both the smuggler and the referrer for a fee may be regarded as wrongdoers and likely candidates for the additional penalty of forfeiture if their assets are used in furtherance of their wrongful acts. But why do we subject the transporter to this risk? The irrationality of the classification can be demonstrated by the following example: Assume "A." a referrer of illegal aliens for a fee. contracts with innocent "B" to transport in "Bs" vehicle illegal aliens to a distant location for employment. Under these circumstances. "A" has committed the violation but "Bs" vehicle is subject to forfeiture as having been used in furtherance of "As" violation. It is hardly persuasive to argue in the year 1973 that "Bs" vehicle is itself culpable and "Bs" personal innocence is irrelevant.