FORFEITURE RULING DISRUPTS ENFORCEMENT

The Albuquerque Police Department could lose "user fee" revenues that
finance narcotics investigations - tough luck. Prosecutors could lose cases
against suspects from whom those user fees were seized - that would be a
crime.

A Dec. 30 Supreme Court ruling on drug case forfeitures has unhinged law
enforcement procedures and cut loose from prosecution at least one suspect.

The court found that criminal case-linked forfeitures of cash and property
amount to punishment. That means that such actions, pursued separately and
usually in advance of prosecution, preclude criminal trial and punishment
because of constitutional protections against double jeopardy.

The court held that prosecutors must join the criminal and the civil
sanctions in a single, two-part proceeding. A higher standard of proof will
have to be met before allegedly dirty cash is turned to cleaner uses.

The ruling is changing procedures for the better. The Albuquerque Police
Department finances narcotics operations, including equipment and overtime,
with assets seized from people who have not yet been found guilty of the
associated crime. What may sound initially like poetic justice for an evil
pusher would be a nightmare for an innocent person, which is what the
criminal justice system must consider any suspect until proved guilty.

In addition to being unconstitutional, it's bad public policy. The old
procedure, in effect, allowed police to appropriate their own funds. As new
procedures evolve under the Supreme Court ruling, forfeiture assets should
be detoured through state or local government general funds and
appropriated by priorities established by elected officials, not the
officers charged with deciding which doors to kick down.

But the ruling is affecting some pending cases for the worse. Criminal
charges against a suspected drug dealer may be dismissed because the city
seized $311 from him last summer, months before the unprecedented ruling
was handed down. The suspect's lawyer is fighting the city's move to give
the money back and buy a chance at trial and a punishment more
proportionate to the charges.

On those prosecutions caught straddling the changing case law, "reverse
forfeiture" would be the fairer path.