Government's Big Grab
SHACKLE the assets as well as the Sankles: This has been a potent approach to fighting the illegal drug trade.
But as a five-part series that ends on Page 6 in today's Monitor shows, innocent people too often get caught in civil forfeiture's grip.
From the law-enforcement perspective, seizing assets in a ``bust'' is an elegant response to the economic incentives in illegal activities. It is a civil procedure: The government must only present a preponderance of evidence, not proof beyond a reasonable doubt, that the assets were used in or acquired through criminal conduct. The person targeted has but 10 days to challenge the seizure and must post a bond equal to 10 percent of the value of the seized assets. Yet usually none of the seized assets - cash in savings accounts, real estate, or other properties - can be used as collateral for the bond. And the burden of proof in a challenge rests with the challenger, not the state. Because the federal government can sell the seized assets and keep the proceeds, which often are used to supplement tight law-enforcement budgets, civil forfeiture is the ultimate ``gotcha.''
The danger comes when the zeal to wield civil forfeiture leads to violations of property and civil rights, and even to the death of innocent people, as the Monitor series documents.
US Justice Department officials who oversee federal civil forfeiture provisions insist that mistakes or abuses are rare. They may be right. But even if abuses are rare, we think the potential for significantly disrupting innocent lives without warning or adequate safeguards is too great to allow the issue to go unaddressed.
At its earliest opportunity Congress should open comprehensive hearings on the subject. Among other issues, the hearings should examine the expanding number of crimes to which forfeiture is being applied. Absent proper proscriptions, forfeiture could become de facto conviction and punishment without trial.
One opening for such hearings is a bill introduced by Rep. Henry Hyde (R) of Illinois that would make needed improvements in civil forfeiture laws.
Supported by the American Civil Liberties Union and 40 congressional cosponsors, the bill would:
* Increase the government's burden of proof from ``preponderance of evidence'' to ``clear and convincing evidence.''
* Expand the period for challenging a seizure to 60 days.
* Allow the use of court-appointed attorneys by people challenging a forfeiture and pay those attorneys from the proceeds of other seized assets sold by the Justice Department.
* Allow a more effective ``innocent owner'' defense, which establishes either that the owner had no knowledge of the violation that led to the property's seizure or did not consent to the criminal act for which the property was being seized.
* Eliminate the government's immunity from lawsuits when the government damages property in an overturned forfeiture.
Law enforcement agencies need effective tools to fight crime. In many ways, state and federal civil-forfeiture laws have been just that.
Whenever laws are misapplied or abused, however, public confidence in the law enforcement system is undermined. Efforts to hold the government more accountable for its mistakes and to give people who are unjustly treated sufficient avenues for redress can only strengthen that confidence.