LET'S JUST SAY 'NO' TO US DRUG-WAR JUSTICE

In the 18th century, the British government so routinely and wrongfully
confiscated property from American colonists that the Colonies overthrew
the crown and wrote their own constitution ensuring due process and
forbidding unjust seizures.

In the late 20th century, the United States government has returned to the
old and odious British ways: illegally seizing property under the guise of
fighting narcotics, and trampling due-process guarantees along the way.

Zealous efforts to collar drug users and dealers increasingly make a
mockery of the Fourth and Fifth Amendments of our Constitution. These
amendments, cornerstones of justice, protect against unreasonable searches
and seizures and ensure that no person will be deprived of life, liberty,
or property without due process of law.

Yet consider the case of Cheryl Sanders. In 1997, Louisiana state police
stopped her for speeding. Claiming to believe that she was a drug dealer,
officers hauled her off to jail and strip-searched her. No drugs were ever
found, however, and Ms. Sanders had no prior arrest record. Nonetheless,
the police seized her car "on suspicion." It took her seven months and
thousands of dollars to get her car back. She then had to sell the car to
pay her legal bills.

Her case, unfortunately, isn't exceptional. Since the early '80s,
law-enforcement bodies across the country have circumvented the Fourth and
Fifth Amendments in the name of drugs. The legal principle undergirding
this abuse is an obscure civil law doctrine derived from the superstitions
of medieval Europe that says a "thing" can commit a crime. The legal term
is an in rem proceeding - taking legal action against "the thing." And
American law-enforcement bodies at all levels now declare houses, boats,
cars, airplanes, even checking accounts, as moral agents capable of right
and wrong.

By connecting these objects to the drug trade - in ways questionable and
often wholly erroneous - enforcement agencies wind up blatantly stealing
property from entirely innocent Americans. The Justice Department alone
collected close to $2 billion of property seized in drug-related cases
between 1993 and 1997 largely through in rem proceedings. The tragedy of
these frequently improper seizures grows deeper each year and now
represents one of the greatest threats to American freedoms since the
witch-hunt days of Joseph McCarthy.

Paul and Ruth Derbacher, for example, had their Connecticut home seized and
sold after police found their grandson's drugs in the home. The Derbachers
had not even realized the drugs were there, but they were punished for the
crime. In West Haven, Conn., another home was seized when the owner's
brother, unknown to the owner, brought drugs onto the premises.

In each of these cases, the concept of the criminality of things - of a
car, a home - led to extraordinary police abuses.

Authorities trespass on and/or outright seize property irrespective of the
owners' knowledge of or control over the "suspected" presence of narcotics.
The owners of the property, in other words, are punished so harshly for the
acts of other parties that the level of pain and suffering rivals that of
imprisonment.

Yet imprisonment can come only in criminal cases, where the Fourth and
Fifth Amendments would be much more strictly enforced under criminal law.
Today's asset forfeitures are typically obtained under civil proceedings,
which are accorded much wider latitude by the present Supreme Court.

Cleverly, by proceeding against a thing, not a person, the government can
escape through civil proceedings the hard-won provisions of the Bill of
Rights that were designed to prevent exactly the kind of confiscations and
invasions of privacy that result.

Without committing a crime, in other words, and without being indicted by a
grand jury or being tried by a jury of your peers, your government can take
your house, your car, and other property based on evidence - including
outright hearsay - that would never be admissible in a criminal court.

A few of our congressmen are trying to do something about this appalling
situation. Henry J. Hyde (R) of Illinois, and John Conyers Jr. (D) of
Michigan have been leading the charge to shift the burden of proof from the
property owner to the government in forfeiture cases. That is where the
burden belongs. They also want to raise the standard of proof required of
the government to seize property. These are urgently needed reforms, and
all Americans should support them.