Giles Corey, Victim of the Salem Witch Hunt, Had a Unique Death

Giles Corey's wishes to pass on his property and farm to his family in Massachusetts in 1692 are identical to the wishes that motivate Bernie Ellis in his fight to avoid forfeiture in Tennessee in 2007.

A bit of history, but just a little bit.

English common law, as it applied to criminal matters, had a number of oddities. One principle of criminal law was that, almost always, conviction of a major felony resulted in a forfeiture of all property owned by the convicted person to either the King or to a lesser Lord, depending on the nature of the crime. The second principle was one wherein the Courts had a very narrow and limited view of their own authority, taking the position that there was a lack of jurisdiction over a defendant until he had voluntarily submitted to it by entering a plea seeking judgment from the court. The defendant could plead guilty or not guilty, but plead he must.

The accused had a serious problem. If he formally pled to the Court, he gave it jurisdiction; upon a guilty judgment, all of his property would be unavailable to his family and heirs. If, as was often the case, land was involved, the forfeiture of property and the escheat to the King was harsh indeed. (The more wealthy the defendant and the more valuable the land and property, the more likely the verdict would be unfavorable and forfeiture probable.) If he refused to plead, there were very unpleasant methods to coerce the plea. One such method was, peine forte et dure, a French term used in English courts, meaning "hard and forceful punishment". It was a method of torture where a the accused who refused to plead would be subjected to having heavier and heavier stones placed upon his or her chest until a plea was entered; as the weight of the stones on the chest became too great for the condemned to breathe, fatal suffocation would occur.

It should be noted that this torture was not designed to elicit a confession or an admission of guilt; it was designed solely to compel the entering of a plea and an acknowledgment that the Court had jurisdiction. By the mid-eighteenth century, the practice had been abolished in England and elsewhere. Today, as was the case after abolition of the coerced plea, a failure to respond to the question, How do you plead" results in an automatic entry of a "not guilty" plea.

Torture to coerce a plea in America

The Salem Witch Trials were a short-lived and totally strange (and still unexplained satisfactorily) episode in American history. This topic is worthy of several articles and studies, many of which have been published over the years. During 1692, the trials resulted in the executions of 20 people and the imprisonment of between 175 and 200 people. In addition to those executed, at least five people died in prison. Subsequently, the colonial authorities in Massachusetts granted pardons, often posthumously, and some recompense to those killed or imprisoned.

One person accused of witchcraft was Giles Corey, a farmer and the husband of Martha Corey. Martha was, from all contemporary accounts, a pillar of the community, religious, upstanding and a civic leader. She, however, did not believe in witches and was outspoken about her opinions. Ultimately, Martha was caught up in the fever of the time and was hanged in September, 1692.

Her husband, Giles, was then arrested and, brought before the Court, refused to enter a plea. He had no doubt that he would be convicted, virtually no one escaped that decision, but was determined that his two sons-in-law be able to inherit his farm. Giles was the last person, and, I believe only, person in this country to suffer the torture of "crushing". He died as a result of the torture on September 19, 1692.

All to escape the forfeiture that would follow his conviction.

Forfeiture in the United States

The Eighth Amendment is brief and, seemingly, without ambiguity. Sure! "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The phrase, "nor excessive fines imposed" has meaning today.

With very limited exceptions, civil forfeiture following conviction of a crime was virtually unknown in the United States until the 1970's when Congress passed the forfeiture statutes, in an effort to curtail organized crime and drug use. For nearly 200 years, the remedy was not used, but now it has been resurrected with a vengeance.

Some weeks ago, Content Producer Joyce Priddy wrote an excellent article in these pages describing the plight of Bernie Ellis, a Tennessee farmer and activist for the cause of permitting the use of cannabis for medically needy people, with the approval and recommendation of a medical professional. I took the liberty of expanding upon Ms Priddy's thesis that such medical use ought to be allowed and that, in any event, the punishment to be imposed upon Mr. Ellis was excessive and unjust. It seems that, for the possession of a few marijuana plants, the Federal government planned to seize a large farm valued at somewhere near $1 million.

The Drug Control laws do provide for the forfeiture of "any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a drug violation. The statute also allows the Attorney General to settle a claim or compromise a seizure.

In United States v. Bajakajian, decided in 1998, the Supreme court held that a "punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the offense that it is designed to punish". So in Mr. Ellis' case, the issue will present itself as to the proportionality of the amount forfeited. The value of the marijuana in evidence was under $7,000.

Is forfeiture be consistent with the Constitution?

There is a certain irony in that the political right often states its desire to have "strict constructionists" appointed as judges. By that, the meaning is to ascertain and follow the "original intent" of the framers of the Constitution. Yet the history of American and colonial jurisprudence is to condemn civil and criminal forfeiture except in a limited number of situations, mostly dealing with smuggled contraband and failure to pay excise taxes and mostly in admiralty courts.

I suggest a number of questions about current forfeiture policies employed to do battle against drug sales and other forms of organized crime. Clearly, the colonists intended to establish a system of criminal justice that was free of the harsh capital and forfeiture penalties that had been experienced in England. Given the anathema that the founding fathers had toward the use of criminal forfeitures, why have they returned after a 180-year absence. Was the doctrine of "original intent of the framers," a popular slogan of conservatives, raised when the U. S. Congress debated the creation of forfeiture statutes in 1970 and then stiffened them in the 1980's?

As with a number of other social concerns, such as pornography, missing children, or sexual abuse of children, once a problem is perceived to be so serious that traditional criminal penalties are inadequate, a cry emerges for additional legislation and enforcement. Drugs and organized crime were targeted first in the 1960's and then again in the 1980's as problems that could not be solved by conventional law enforcement tactics, including prison and fines . New strategies, including removing the profit from organized crime activities, spawned new laws, such as RICO and CCE. My basic concerns are not whether forfeiture penalties are necessary or effective, but to raise concerns over their social and political consequences. What are their costs to the Constitutional protections and freedoms we have come to take for granted? Are we, as a nation, repeating the very same policies that so angered early American colonists?

Who benefits from forfeiture?

That is an easy question to answer. Law enforcement agencies have generally been allowed to keep seized assets for themselves and have often used these assets to purchase new equipment for use in other cases that will produce additional forfeitures. If the police are the primary beneficiaries of forfeiture, how might that impact on the use of discretion within law enforcement? According to a 1998 article published in the University of Chicago Law Review, the ability of law enforcement agencies to financially benefit from forfeited assets, and the provision of large block grants from Congress to fight the drug trade "have
distorted governmental policy making and law enforcement." The article continues "the law enforcement agenda that targets assets rather than crime, the overkill in agencies involved in even minor arrests, the massive shift in resources towards federal jurisdiction over local law enforcement - is largely the unplanned by-product of this economic incentive structure."

It is time that the entire concept of forfeiture be re-examined. The framers of the Constitution had it right. It is a bad idea.