SEIZING LIBERTY

After more than three decades of excess, Congress seems ready to
curtail the use of federal powers to seize (and sometimes destroy)
cars, boats, houses and other personal belongings. The Senate
Judiciary Committee has approved legislation that would change the
playing field for such civil and criminal seizures of private property.

The biggest reform involves shifting the burden of proof in these
cases. Under current law, prosecutors need only show probable cause to
initiate seizure of personal possessions; the burden is on the
property owners to prove otherwise. That runs counter to every
constitutional protection envisioned by the Founding Fathers.

``As a man is said to have a right to his property, he may be equally
said to have a property in his rights,'' wrote James Madison. ``Where
an excess of power prevails, property of no sort is duly respected. No
man is safe in his opinions, his person, his faculties, or his
possessions.''

The Senate bill differs from the House version, passed last June by a
375-48 vote. The House version, sponsored by Rep. Henry Hyde, an
Illinois Republican, requires the government to come up with ``clear
and convincing evidence.'' The Senate version lowers that requirement
to ``by a preponderance of evidence.'' It is a subtle distinction but
one the administration insisted on so law enforcement would not lose
the forfeiture tool.

But law enforcement has not shown that it can wield that tool fairly
or judiciously. When federal marshals seized the house and 49
surrounding acres of one Vermont family after the husband admitted to
growing six marijuana plants, law enforcement thought it was justified.

The legislation also contains a hardship provision if government
possession of property creates a hardship and extends the time a
property owner has to challenge a seizure. It also removes the
requirement that a person seeking to recover seized property post a
bond with the court.

This compromise legislation is a start, but it doesn't go far enough.
It does not prohibit law enforcement agencies from profiting from
sales of assets they seize, a tremendous incentive to utilize the
seizure laws. It also doesn't apply any proportionality to the
seizure, allowing seizures of property far in excess to the proportion
of the crime involved.

But even with those caveats the Senate should move expeditiously to
pass the legislation and rein in government's pernicious penchant for
taking private assets. The violation of private property rights cannot
be justified by a declaration of war on drugs or any other social concern.