CARS, CASH AND CRIME

THE SENATE Judiciary Committee is scheduled today to take up the question
of civil asset forfeiture, a procedure under which the government takes
property used to commit crimes. The idea is unassailable: If you use your
boat to ship drugs, you lose the boat. In practice, however, asset
forfeiture has become a dicey business, largely because the rules are
stacked in the government's favor. The government can seize property
without presenting much evidence, and the burden of proof then shifts to
the owner to demonstrate in court that the property is not subject to
forfeiture. Even to contest the forfeiture, the owner must post a bond.
These unfair rules have in some cases forced innocent people into lengthy
legal battles to retain their property.

Last year, the House overwhelmingly passed a bill championed by Reps. Henry
Hyde (R-Ill.) and John Conyers (D-Mich.) that would place the burden of
proof on the government in civil forfeiture cases. The Hyde-Conyers bill
would also get rid of the bond system and impose time limits on the
government for initiating forfeiture actions. It's a good bill in many
ways, but it goes too far. It would make it too hard for the government to
prove property was used in a crime, thus likely reducing legitimate use of
forfeiture in law enforcement.

A Senate bill sponsored by Judiciary Committee Chairman Orrin Hatch
(R-Utah) and ranking member Patrick Leahy (D-Vt.) does better. It too would
shift the burden of proof to the government, but it would make it somewhat
easier for authorities to prove their case than the Hyde-Conyers bill does.
Under this proposal, the government would have to initiate cases within a
specified period of time; property owners would not have to post bond
merely to contest those cases; and the government would have to convince a
court by a preponderance of evidence that the assets had actually been
misused. If the government lost, it would pay attorneys' fees, and in
certain hardship cases it could be required to release property during
proceedings. The bill strikes a balance between property rights and law
enforcement's use of a legitimate tool.