CONGRESSIONAL FOES TURN UP ON SAME SIDE OF SEIZURE ISSUE

House set to consider bill meant to deter civil forfeiture abuses

WASHINGTON -- In Malibu, a wealthy rancher was shot to death by federal
agents who burst into his home on suspicion that he was cultivating
marijuana. It later turned out he strongly opposed illegal drugs. A local
district attorney concluded after an investigation that the government was
more interested in seizing his valuable property under civil forfeiture laws
than on making a drug arrest.

In Detroit, a former professional football player was detained by Drug
Enforcement Administration agents because, as a black man who had purchased
a one-way ticket to El Paso, he fit the profile of a drug courier. The DEA
confiscated some $18,000 in cash the man was carrying -- again under the
civil forfeiture law. It was later discovered that the player had been going
to an auction to buy a classic car.

These are but two examples in a long inventory of case studies assembled by
critics of a 210-year-old statute -- more recently beefed up by Congress to
help fight drugs, child pornography, financial fraud and carjacking -- that
aims to deny wrongdoers the fruits of their criminal enterprises.

Antagonists unite

Today, the House is scheduled to take up a bill sponsored by some longtime
congressional foes-turned-allies -- Judiciary Committee chair Henry Hyde,
R-Ill., a conservative, and Rep. Barney Frank, D-Mass., a liberal -- that
would try to remedy what they see as a license to abuse the rights of
innocent people. Other notable co-sponsors include such impeachment
antagonists as liberal Michigan Democrat John Conyers and conservative
Georgia Republican Bob Barr. Institutional backers range from the
libertarian Cato Institute to the American Civil Liberties Union.

Justice Department official Myron Marlin said Wednesday that "civil
forfeiture is an incredibly effective tool" for authorities to deprive
criminals of the assets they need to thrive. In the past decade, the
official said, the federal government alone has averaged $500 million a year
in seizures, mostly in cash, but also in property such as cars, boats and
planes.

Critics, some of whom carry staunch law-and-order credentials, contend that
hundreds of innocent people have been victimized by overzealous law
enforcers who are as eager to fortify their budgets with the fruits of their
property seizures as they are to crush drug dealing. (The proceeds collected
by the federal government, for instance, are divided 50-50 between federal
law enforcement agencies, and state and local ones.)

Congress began turning to forfeiture as a law enforcement tool in 1978 when
crime and drugs were among the main worries of U.S. voters. In the past
several years, however, crime has been declining and the public's concerns
have turned to other issues.

"The Hyde bill is trying to solve a problem that's already been solved,"
Marlin of the Justice Department said. "Both the FBI and DEA now require,
for instance, that all seizures be screened at headquarters here to make
sure there's an actual basis for the seizure. Nowadays, 85 percent of the
30,000 seizures we make each year are not even contested. And of the
remaining 15 percent that are, we only lose about 4 percent of the cases."

But Frank said the legislation is still needed to deter abuses that are
almost bound to occur because of the financial interest law enforcers have
in the proceeds of seizures.

Hyde's bill would:

Require the government to prove that the property seized was part of a
criminal activity. Under the existing procedure, the property owner bears
the burden of proving that his or her property was not used in a crime.

Raise the government's standard of proof to one of "clear and convincing
evidence" that the property was linked to the crime. Now the government need
only show "probable cause" to seize suspect property. The Justice Department
is arguing that any new standard of proof should be a "preponderance of
evidence" -- a lower standard -- that the property warranted seizure.

Allow federal judges to order that disputed property be released to the
owner pending final disposition of the case, if the owner could show a
"substantial hardship" should the government keep the property.

Remove a requirement that an owner post a bond equal to 10 percent of the
property's value just to get a hearing to challenge the government's claim.

Enable judges to appoint a lawyer for property owners unable to afford the
cost of pressing claims for return of their belongings.

Allow a property owner to sue the government for any damage or destruction
of the seized property while in the government's possession.

Award interest to a property owner who succeeds in getting any seized money
back.

Some changes agreed to

The Justice Department has agreed to shift the burden of proof in forfeiture
cases to the government. It also agreed to permit recovery of money plus
interest if the owner prevails in a contested case.

But it opposes the other provisions in Hyde's measure. "That bill would make
it easier for criminals to hold on to their ill-gotten gains," Marlin said.

Hyde's bill is expected to pass the House, although it will have to weather
an attempt by two former federal prosecutors -- Reps. Asa Hutchinson,
R-Ark., and Ed Bryant, R-Tenn. -- to water down several provisions.

Its prospects in the Senate this year appear to be murky. The Senate
Judiciary Committee has not held hearings on the legislation and committee
chair Orrin Hatch, R-Utah, has not formulated a bill of his own on the
subject.