ASSET FORFEITURE CAN LEAD LAW AGENCIES INTO MAZE OF CONFLICT-OF-INTEREST ISSUES

America's war on drugs has claimed some innocent victims over the years --
including, at times, the Fourth Amendment of the Bill of Rights. In case
you don't remember it, the Fourth Amendment says, "The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated ...."

Overzealous cops and prosecutors sometimes stumble over the Fourth
Amendment in their haste to separate drug dealers from their ill-gotten
gains. In addition to snaring drugs, the net cast by law enforcement also
includes cash, cars, firearms and sometimes even homes.

Asset forfeiture, as it's known, is a tricky business when it intersects
with private property rights. The U.S. Congress recognizes this, which is
why it recently approved a bill limiting Uncle Sam's authority to seize
private property.

Here in Twin Falls County, Prosecutor Grant Loebs has placed generally
reasonable restrictions on civil asset forfeiture. His challenger in the
Republican primary, Mark Murphy, wants to expand asset forfeiture into
areas where it doesn't belong. Voters would be wise to keep this
distinction in mind next month.

Asset forfeiture is pretty straightforward in obvious drug cases. It's fair
game if the seized item was acquired with the proceeds from illegal
activities of a drug dealer who was convicted on criminal charges.

But many drug cases aren't so clear-cut. When teenagers are caught selling
marijuana out of their parents' home, is the home fair game for seizure? Or
a ne'er-do-well dealing crank out of his wife's car?

More fundamentally, should cops and prosecutors be allowed to seize a
suspected drug dealer's assets when they can't convict the suspected dealer
on criminal charges? It happens occasionally, because criminal cases
require proof "beyond a reasonable doubt." Civil cases have a lower
standard of proof, a mere "preponderance of evidence."

Thus, a citizen of the United States can be stripped of his house, boat,
truck, guns and cash without ever being convicted of a crime. Is that fair?

If this sounds familiar to some Magic Valley residents, it should. Former
Twin Falls County Prosecutor K. Ellen Baxter and her deputy, Frank Nichols,
went overboard in their drug-fighting efforts in the early '90s. There were
many reasons why some of their cases were flawed, not the least of which
was that their ill-starred drug task force was partially funded with -- you
guessed it -- seized assets.

We're no friends of drug dealers, and we don't shed a tear when they are
stripped of ill-gotten gains following a criminal conviction. But we're
also leery of law enforcement agencies using asset forfeiture to line their
own nests. Once cops and prosecutors develop an appetite for seized assets,
they are walking an ethical tightrope that often leads to a conflict of
interest.

In Twin Falls County, 30 percent of the proceeds from seized assets goes
into a special drug enforcement fund in the prosecutor's office. The other
70 percent goes into a similar fund maintained by the law enforcement
agency that made the seizure.

Though not used to pay salaries, seized assets do subsidize other expenses
in the prosecutor's office, local police departments, and the county
sheriff's office. The amounts are small, totaling only $26,256, eight cars
and several guns in 1998, but the underlying principle is significant.

Transferring seized assets from drug dealers to the people who arrested and
prosecuted them sets up a classic conflict of interest. It's bad enough
when the dealer is convicted on criminal charges, but it would be
intolerable in the absence of a criminal conviction.

Asset seizures have been abused elsewhere, and it could happen here again.
The best way to ensure that it doesn't is to invest seized assets in
society's broader needs, not law enforcement budgets.