PIECE by piece, federal judges are dismantling a powerful weapon used by lawmen in the war on drugs.
The weapon - civil asset forfeiture - permits government officials to seize homes, businesses, cars, airplanes, cash, and other property used in drug crimes and other illegal schemes. Police often act without a court hearing.
The United States Supreme Court now has warned the government in a series of precedent-setting decisions that police and prosecutors are treading on dangerous ground. The judges caution US officials that fundamental American liberties are being put at risk by the drug war.
Brenda Grantland, a California attorney who has waged a decade-long struggle against forfeiture, cheers the court's decisions, but says many abuses remain. The most recent case, US v. Good, was decided last week on a 5-to-4 vote.
``Case by case, we are getting back to the Constitution,'' she says. ``The courts had to rein in the government, or we would lose everything we have under the Constitution.'' Police are alarmed
Federal, state, and local law-enforcement officials are alarmed, however. They warn that their battle against drug felons will be crippled unless they have the authority to seize suspects' assets quickly before a trial or a hearing.
In the latest case, the government had grabbed the home in Hawaii of James Daniel Good, a known drug dealer. Although Mr. Good had served a jail term for his crime and paid a $1,000 fine, lawmen suddenly seized his house 4 1/2 years after his arrest. He was given no opportunity to challenge the action prior to seizure.
Such aggressive government action is not unusual. Police often forfeit property without warning, especially when it involves cars, boats, or cash, which can be quickly moved outside their jurisdictions. The courts have accepted such seizures. However, the court said a house is another story - and Mr. Good's ability to defend his property was unlawfully abridged.
Although Good was a drug dealer, Justice Anthony Kennedy, writing for the majority, reminded government lawyers that even criminals have rights.
``Fair procedures are not confined to the innocent,'' Justice Kennedy wrote.
The court also reasserted the constitutional principle that property rights are an essential part of the American system.
``Individual freedom finds tangible expression in property rights,'' the court said. ``At stake in this and many other forfeiture cases are the security and privacy of the home and those who take shelter within it.''
In their defense, government officials point out that before seizing a home, they go before a judge and request, in effect, permission to ``arrest'' the house. But the majority of the court called such legal procedures one-sided. They noted: ``Fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.''
The decision on the Good case appalled some members of the court, including Chief Justice William Rehnquist and Justice Antonin Scalia. They called it ``ill-considered and disruptive.''
The justices noted that before a seizure becomes final, a property owner will eventually have the right to contest it in court. They quoted an earlier decision by Justice Louis Brandeis to support their point: ``Where only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process...''
Most of the current Supreme Court justices, however, seem discomfited by the government's forfeiture program, which has taken possession of more than $3 billion worth of private property since the mid-1980s.
Sometimes it takes years for innocent parties, such as Carl and Mary Shelden of Moraga, Calif., to get justice. The Sheldens have fought the government for more than a decade to get back a $160,435.65 mortgage they loaned to a man to buy their house.
The buyer turned out to be a criminal, and when the government seized his house, officials refused to repay the Sheldens their mortgage money. Only in October did a federal appeals court finally rule in the Sheldens' favor. High court cases
In response to such government abuses, the Supreme Court began pulling on the reins of the government last year. Since that time, it has:
* Ruled unanimously in Austin v. US that the government cannot impose ``excessive fines,'' which are prohibited by the Eighth Amendment, as punishment for drug dealing. In the Austin case, police had seized a North Dakota man's car-repair business and mobile home after he was caught selling two grams of cocaine.
* Decided 6-to-3 in US v. A Parcel of Land that an ``innocent owner'' cannot be held responsible for accepting a gift from a drug dealer, and then using that money as payment on a house. The government had forfeited a house owned by Beth Ann Goodwin of New Jersey after she used a $240,000 gift from her boyfriend, a drug dealer, to buy the dwelling.
* Ruled 9-to-0 in Alexander v. US that the Eighth Amendment protection against ``excessive fines'' applied to a bookstore owner who was convicted of racketeering for selling obscene books. As one part of his punishment, the government forfeited his books, thousands of which were not obscene, and destroyed them.