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.

* Phil Harvey is president of DKT International, a non-profit organization promoting reproductive health in developing countries and now sponsoring a domestic civil liberties project. Mike Tidwell is author of 'In the Shadow of the White House: Drugs, Death and Redemption on the Streets of the Nation's Capital' (Prima, 1992).