CROSSING THE LINE

"Compassionate conservatism" is the slogan of possible Republican
presidential candidate George W. Bush, but Rudy Giuliani will have
none of that. The New York mayor prefers his conservatism to be
merciless. He seems to lie awake nights wracked with fear that someone
will accuse him of not being half as tough as Ivan the Terrible.

His newest headline-grabbing policy is to seize the vehicle of anyone
arrested for drunken driving in New York City. Now, a politician can
never go wrong pitting himself against landlords, pornographers or
motorists accused of driving while intoxicated (all of whom the mayor
has taken on). But there is such a thing as going overboard for a
commendable cause--which would come as a surprise to Giuliani, who
shares Mae West's belief that too much of a good thing is wonderful.

What's wrong with confiscating cars from anyone stopped for drunk
driving? A lot of things. Most conspicuous is that it gets things
exactly backward. The long-standing custom in Anglo-Saxon judicial
systems is to try the suspect and then impose punishment only if she
is convicted. New York has adopted a more primitive
approach--punishment first, then trial.

This may look like a logical extension of the practice of
automatically suspending the driver's license of anyone charged with
DWI. But taking away a state-granted privilege is a mild sanction
compared to the confiscation of an item of personal property that can
be worth $20,000 or $50,000 or $100,000. For comparison's sake,
someone convicted of a second offense of drunk driving in New York can
be fined no more than $5,000. The mayor's car seizures apply even to
first-time offenders.

The beauty of Giuliani's approach, as he sees it, is that it doesn't
get bogged down in the bothersome demands of due process. The police
catch a drunk driver, and boom! He gets his just desserts, on the
spot. Judge Roy Bean couldn't do it better himself. The mayor thinks
trivia like procedural safeguards and the presumption of innocence are
unaffordable luxuries when the cops are chasing bad guys. The fact
that police sometimes make mistakes also makes no difference to Giuliani.

So even the innocent will lose their cars, at least for a while. And
maybe longer. If you're acquitted of the drunk-driving charge, or if
the prosecutor drops the case, you might assume you'll get your car
back, along with a polite apology. Wrong. You will have to hire a
lawyer, at considerable expense, and go to civil court to persuade a
judge to return your vehicle. There, the cops don't have to prove your
guilt--you have the burden of proving your innocence. The whole
business may take months.

But New York City Corporation Counsel Michael Hess wastes no sympathy
on innocent motorists unjustly deprived of their means of
transportation. "They're not going to be able to get the car back very
easily," he promised. "That's the whole purpose of the program." Under
the Giuliani administration, even those who have done nothing wrong
are treated like criminals.

That includes people who weren't even driving, much less driving
drunk. Sgt. Cory Cuneo, a spokesman for the police department, says
that it normally won't seize rental cars or other cars not registered
to the driver. But it will go after a vehicle if the owner "lent the
car to someone who was drunk or someone who was going out drinking."
You read that right. If you give your keys to a visiting relative so
he can meet a friend for a glass of wine, you will be held responsible
if he ends up sloshed and behind the wheel.

It may be argued that the confiscation is not punishment but
prevention. By taking away the drunk's car, you keep him from
repeating his crime. But as University of Chicago law professor Albert
Alschuler points out, simply revoking licenses is enough to keep all
but the most unregenerate lawbreakers off the road. Confiscation of
vehicles has a role in combating drunk driving, but a limited one--as
a means of disabling chronic offenders after they have been tried and
convicted.

But Giuliani is not content with targeting the most dangerous
motorists. For that matter, he's not content with targeting just
drunks. He wants to intimidate even responsible drinkers. "If you've
had even one drink," he said, "you should find somebody else to drive
your automobile, or you should stay where you are or use public
transportation. We have to find every possible way to get that message
across to people."

For years, purveyors of liquor have tried to muddy the debate by
insisting that advocates of stricter drunk-driving laws wanted to
stamp out even harmless social drinking. Now, a leading public
official has confirmed the allegation. That typifies his attitude
toward any evil he identifies. In Giuliani's world, moderation in the
pursuit of justice is no virtue.