RISKS LURKING IN THE WAR ON CRIME

The war against crime is getting out of hand and needs to be reassessed
before the Constitution is torn to shreds. Both lawmakers and law enforcers
have forgotten that the ends don't justify the means. In the determination
to pursue crime-especially drug-related crime - ever more discretionary and
unaccountable power is being concentrated in law enforcement personnel.

The view is prevalent among Republicans and Democrats that combating
sophisticated criminals requires more intrusive powers. Recently the House
Banking Committee reported out a money-laundering bill (HR 3886) that,
among other abominations, would give the Treasury Department the
discretionary power to violate everyone's financial privacy and to prohibit
financial transactions with suspect institutions at home and abroad.

The blackmail potential of this discretionary power is enormous. Financial
institutions would feel pressured to spy for the government in order to
avoid being blacklisted. Thanks to Sen. Phil Gramm, Texas Republican, this
bill is dead for now. But as soon as one head of the hydra is chopped off,
another appears.

Rep. Spencer Bachus, Alabama Republican, wants to give us HR 3125, another
"death-to-privacy bill" that would permit the Customs Department to open
anyone's mail without a warrant in an effort to combat money-laundering.

Offenses such as money laundering and discrimination are technical in
nature and do not require intent to commit a crime. People who remit money
to family abroad and doctors who, fearful of malpractice suits, maintain
assets in "tax havens" could find themselves charged with money laundering.

The record shows that law enforcement agents seldom differentiate between
inadvertent violations and the activities of criminals. Consider the case,
for example, of Dr. Richard Lowe, a physician in a small Alabama town. As a
youngster, Dr. Lowe was scarred by what bank failure did to his family
during the Depression. Over the course of his life, he hoarded cash, which
accumulated in shoeboxes in his closet. When he established a charitable
account for a small private school, his wife prevailed on him to deposit
the shoeboxes of cash to the school's account. The sum came to $316,911, an
amount far over the limit permitted for a cash deposit.

His banker handled the transaction in a manner that constituted a technical
violation of money-laundering law. Even though it was obvious that neither
Dr. Lowe nor his banker were criminals engaged in money laundering, the FBI
and the U.S. attorney seized all of Dr. Lowe's assets and indicted the
banker. Dr. Lowe spent six years of his old age fighting off trumped-up
charges and regaining his money. The banker was forced into a plea bargain.

Recently in a letter to the editor, a flack for the House Banking Committee
defended HR 3886 from my criticisms. The bill's intent was clear, he said,
and only "criminal predators" would be the targets.

Such assurances have proved false in the past. The House Banking Committee
should have a look at the consequences of the asset forfeiture laws. Asset
forfeiture was targeted at drug lords. But, alas, 80 percent of the victims
of asset forfeiture are innocents who are never charged with a crime. This
is because the law allows assets to be seized "on probable cause," which
does not require the owner to have committed a crime.

People have lost their homes and rental properties because grandchildren or
visitors allegedly carried drugs into the house or a renter used drugs on
the premises. Police have set up roadblocks and confiscated people's cash
on the grounds that drug activity could be inferred from sums in excess of
$100. Donald Scott, a California multimillionaire, lost his life as a
result of a deputy sheriff's plot to confiscate his 200-acre Malibu estate
on fabricated drug charges.

The House Judiciary Committee led by Rep. Henry Hyde, Illinois Republican,
has documented the most extraordinary abuses of the asset forfeiture laws.
The Banking Committee and Mr. Bachus should sit down with Mr. Hyde and
listen carefully before they create any more Gestapo powers for law
enforcement officers.

Well-intentioned law-and-order Republicans have done far more damage to
justice than they have to crime. The United States now has so many criminal
offenses that do not require criminal intent that every one of us is at risk.

Forty-eight years ago Harvard University legal scholar Henry M. Hart asked
the Warren court what sense it made to insist upon procedural safeguards in
criminal prosecutions when people could be convicted of inadvertent
violations of laws of which they were unaware.

Now that crime no longer requires intent, it is foolish to expect law
enforcement to differentiate between innocent infractions and criminal intent.