Render Not Unto Seizure

Article excerpt

The GOP must choose between law and enforcement.

The Justice Department last year confiscated 42,454 cars, boats, houses, stacks of cash, and other items of private property-booty valued at nearly $605 million. Federal agents can seize a person's property by invoking more than two hundred different federal statutes involving everything from wildlife to carrying cash out of the country to playing poker for cash with friends and relatives. The vast majority of people whose property is seized is never formally charged with a crime. In criminal cases, the government must prove a person guilty beyond a reasonable doubt. In civil asset forfeiture, the only thing federal agents need is a hearsay accusation, mere gossip, or rumor. Often forfeitures are based on the word of confidential informants (frequently ex-convicts), who receive up to 25 percent of the value of any property the government seizes based on their accusations.

Now Congress and the Clinton administration are baffling over the scope of government's power to confiscate private property. The House of Representatives has rebuked the administration and its allies on the issue by a surprising margin, yet the Senate seems far more seizurefriendly. And the White House is doing all it can to expand federal power in this area. This battle also highlights a major fault line within the Republican Party, between those who cater to law enforcement and those who believe government power must be limited.

Rep. Henry Hyde (R-Ill.) has been pushing to reform forfeiture since 1993.

This year, he finally got his bill through the House-aided by a diverse band of co-sponsors including Rep. Bob Barr (RGa.), Rep. Barney Frank (D-Mass.), and Rep. John Conyers (D-Mich.), and backed by organizations ranging from the American Civil Liberties Union to the National Rifle Association. Hyde's bill would shift the burden of proof to the government in forfeiture cases, abolish the requirement that people post cash bonds before suing to regain their property, and institute other procedural changes to make the system more equitable.

Hyde's bill evoked hysteria among American law enforcement. Rep. Asa Hutchinson (R-Ark.) introduced a substitute "reform" bill that would have actually greatly increased the government's power to confiscate property. Most of Hutchinson's substitute bill was written by Justice Department lawyers.

During the floor debate on Hyde's bill on June 24, Hutchinson complained:

"How does disarming law enforcement fit into the war on drugs?" Thus, decreasing a DEA agent's power to seize your car is the equivalent of taking away his sidearm.

Some of the opponents of Hyde's bill were indignant that the House would even stoop to consider such a bill and mention some well-known forfeiture outrages. Rep. Anthony Weiner (D-N.Y.) raised the caliber of the debate with a gem of congressional logic: "The abuses that exist, and they do, they represent the straw man in this debate because indeed we all want to do away with the abuses." Thus, because all members of Congress must be presumed to wish that abuses did not occur, it is unfair and irrational to actually consider seizure abuses when seeking to reform the law.

Rep. Ed Bryant (R-Tenn.) explained why money was so often seized from those with no drugs on them: "The way the system works in this is when there are couriers...they either have the money or they have the drugs, but they do not have them both.... So we either find drugs on the person or money on the person, depending which way they are going. Thus, the fact that someone is caught with lots of money but no drugs miraculously proves that they are a drug courier."

Hyde's bill would allow judges the option of appointing counsel for indigent citizens who seek to challenge forfeiture actions. (The cost of hiring a lawyer to fight a seizure is widely estimated to be at least $5,ooo-often more than the value of the goods seized. …