FORFEITURES AND FAIRNESS

The civil forfeiture laws that allow the government to confiscate the
property of narcotics dealers even in the absence of a criminal conviction
have proved to be a valuable weapon against wealthy drug dealers, some of
whom fear losing their money more than they fear prison.

But the laws have also spawned a growing number of cases in which people
guilty of no wrongdoing have had their assets seized -- giving rise to civil
liberties concerns, as well as a promising reform movement in Congress.

There is now widespread agreement that the forfeiture rules tilt too far in
favor of government power.

To justify a seizure, law enforcement officials need only make a showing of
"probable cause" that the property is subject to forfeiture, an easy
standard to meet. The burden then shifts to the property owner to prove that
the seized property was not illegally used or acquired.

Last June, the House overwhelmingly approved a measure that would shift the
burden of proof to the government, where it belongs.

It was sponsored by Representative Henry Hyde, the chairman of the House
Judiciary Committee, and Representative John Conyers Jr., the committee's
ranking Democrat -- two lawmakers who rarely agree.

Their bill would permit forfeitures only if the government could show by
"clear and convincing evidence" that the property figured in a crime.

A similar reform measure backed by the leaders of the Senate Judiciary
Committee -- Senator Orrin Hatch, its Republican chairman, and Senator
Patrick Leahy, its ranking Democrat -- is now pending before the committee.
It would sensibly set the evidentiary bar for the government somewhat lower
than the House, allowing forfeitures based on "a preponderance of the
evidence" -- the standard that applies generally in all civil cases.

Some of its other worthy provisions borrow from the House bill. These
include new protections for innocent owners, court-appointed counsel for at
least some indigent owners and abolition of the unreasonable requirement
that property owners pay a bond for the privilege of challenging a seizure.

A competing version put forward by Senator Jeff Sessions, the Alabama
Republican, and Senator Charles Schumer, the New York Democrat, is favored
by the Justice Department. It also embraces the sound "preponderance of
evidence" standard but is too forfeiture-friendly in other respects.

For example, it retains the bond requirement for claimants, and would allow
the government to demand that owners produce documents even before any civil
complaint had been filed against them or the government had articulated its
reason for suspecting wrongdoing.

Unfortunately, none of the proposals address the impetus for abuse created
by the current scheme for sharing forfeiture proceeds between federal
authorities and local police.

Still, there is a chance now to strike a better balance between legitimate
law enforcement needs and protection of individual rights.

It should not be missed.