FORFEITURE REFORM MOVING FORWARD

A years-long attempt in Congress to make it harder for the Justice
Department to seize suspects' property is gaining momentum.

Federal law enforcement officials have always been able to push back a
legislative crackdown, but it looks increasingly likely that they will
soon have to accept some curbs.

In June, the Justice Department lost a major battle when House
Judiciary Committee Chairman Henry Hyde (R-Ill.) finally got
overwhelming bipartisan support for a bill that would strictly rein in
civil asset forfeiture.

This week, the Senate is set to begin debate on two proposals of its
own.

The Senate, whose members are generally more sympathetic to police and
prosecutors, appears to be a more hospitable venue for the DOJ. But
even there, many members are likely to back one of the two measures,
both of which attempt to put some new limits on prosecutors.

Shifting Burden Of Proof

Under current law, the federal government can
seize a citizen's assets without a trial or even a charge being filed
if it can simply show "probable cause" that the property was purchased
with proceeds of criminal activity or was used in the commission of a
crime. To recover his assets, a citizen must show that his money or
property was never connected to a crime. And even then, the law often
makes it difficult for the suspect to retrieve his assets -- even if
the charges against him have been dropped.

In the most important change to current civil asset forfeiture laws,
all versions of the legislation being debated would shift the burden
of proof from the citizen to the police, who would need more concrete
evidence before seizing any assets.

Under Hyde's bill, police would have to show "clear and convincing
evidence" that the assets in question were criminally tainted. The
legislation would also allow suspects to get their assets back while
their cases are pending if they can show "substantial hardship."
Further, the bill would allow the court to appoint counsel for
indigent defendants in forfeiture cases, a move prosecutors say could
clog the courts.

Hyde has put together a strange but effective coalition, including
outspoken liberals such as Reps. John Conyers (D-Mich.) and Barney
Frank (D-Mass.) and strong conservatives like Bob Barr (R-Ga.). His
supporters say that although forfeiture laws put the squeeze on drug
dealers and other criminals by going after the fruits of crime, law
enforcers have often abused their power by seizing and holding onto
the houses, cars, and bank accounts of innocent people.

The Justice Department has lined up a diverse coalition of its own to
try to amend the laws to its liking.

Sens. Jeff Sessions (R-Ala.), Charles Schumer (D-N.Y.), Strom Thurmond
(R-S.C.), and Max Cleland (D-Ga.) -- in addition to the entire federal
law enforcement establishment -- are pushing a largely DOJ-written
bill, which counters Hyde's measure in a number of important ways.

The Sessions bill, introduced last month, would, like Hyde's, shift
the burden of proof to the government -- but it would mandate only
that it showa "preponderance of the evidence," instead of Hyde's
"clear and convincing evidence" standard. Like the current law,
Sessions' measure has no provision for the appointment of indigent
counsel. And it places several more conditions than the Hyde bill does
on the release of assets to defendants in hardship cases.

There is a third option brewing.

Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.), chairman and
ranking minority member of the Senate Judiciary Committee, are working
on a draft that would serve as a compromise between Hyde and Sessions.
The "preponderance" standard would hold, but in many other respects,
according to a summary of the Hatch draft, the bill hews closer to the
Hyde measure.

"Senators Hatch and Leahy are working to pass a bill that serves the
interest of law enforcement -- and the rights of property owners,"
says Judiciary Committee spokeswoman Jeanne Lopatto.

A not-so-hidden subtext of the debate is the money at stake. The DOJ's
forfeiture proceeds in FY1999 swelled to about $600 million, up from
$27 million in 1985.