FORFEITING PROPERTY AND MORE

In "Through the Looking Glass," the White Queen announces a new legal
doctrine: "Punish first and then get on with the trial." Mayor Rudolph
Giuliani seems ready to emulate this logic.

First he announced that New York City would seize the cars of people
accused of drunk driving and return the cars if the people were acquitted.

Then he decided he'd keep the cars of those acquitted as well. "Let's say
somebody is acquitted," the Mayor explained, "and it's one of those
acquittals in which the person was guilty, but there is just not quite
enough evidence." So now the Mayor gets to decide who is "really" guilty,
never mind the evidence or a jury's unanimous decision.

Do you feel safe? But perhaps Mr. Giuliani has done us all a favor by
raising the subject of civil asset forfeiture. Under a 1984 Federal law,
Federal officials can seize property suspected of being used in a crime,
without arresting anyone.

Many states have similar laws.

By arresting property instead of people, the Government does an end-run
around the Constitution.

Since property has no rights, the argument goes, no notice is required, no
prior hearing is required, and evidence beyond a reasonable doubt isn't
required -- a neat trick.

But consider the consequences. A couple in Connecticut lost their home
because Federal agents found drugs in their grandson's room. A landscaper
who bought supplies from nurseries that demanded cash payments was seized
when he paid for an airline ticket with a portion of the $9,600 he was
carrying. Federal agents assumed he was a drug dealer, and though he had no
police record and no involvement with drugs, they confiscated all his
money. In another case, a man with glaucoma who owned a 90-acre farm in
Kentucky grew a few marijuana plants on the advice of his ophthalmologist,
who was authorized by the Federal Government to test marijuana for the
medical treatment of the disease.

The ophthalmologist testified that it was the only medication that could
help. The Government confiscated his farm anyway. In other cases, state and
Federal authorities have taken cars, homes, restaurants and cash. Usually
they sell the assets and keep the proceeds. There is now close to $3
billion in the Federal "Asset Forfeiture Fund," and local police
departments have padded their budgets as well. Many people who have had
their property seized are not even arrested or charged with a crime.

The statutes authorizing these seizures do not require a prior hearing.

Worse, the Supreme Court has upheld seizures of this kind, so reform almost
certainly will require legislation. Modest reforms are pending in Congress
with a bill sponsored by Representative Henry Hyde, who has called civil
asset forfeiture "Kafkaesque." But these reforms are not enough.

Civil asset forfeiture is unfair and un-American. It deserves to be
resisted by all citizens, any one of whom may one day be its victim.