A botched reform

Over the past 15 years, the federal government has increased its power to
seize property without a trial mostly to facilitate the "war" on drugs.

In many cases, people only suspected of a crime, or charged but not yet
convicted, lose their homes, savings and other property. And the laws place
the burden of proof on the person whose property has been seized. In some
instances, however, the person cannot financially mount a defense because
the government has his assets.

This power has grown despite the Fourth Amendment's protection of the "right
of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures... ."

To fully restore that right, earlier this year Rep. Henry Hyde, chairman of
the House Judiciary Committee, introduced H.R. 1835, the Civil Forfeiture
Reform Act of 1997. The bill was a straightforward reform simply
requiring the government to return seized property pending a trial.

Unfortunately, after pressure by the Clinton administration, H.R. 1835 was
modified and turned into a new bill, House Resolution 1965.

The result is "a compromise that makes things worse than present law. It
makes no sense," Barbara Grantland told us; she's vice president of
Forfeiture Endangers American Rights (FEAR), a group that helped draft the
original bill. "The Judiciary Committee let the Department of Justice
rewrite the bill, and they just made a mockery of reform," she charged.

H.R. 1965 puts a number of complicated conditions on the return of seized
property to a suspect before trial. The property owner, for example, must
have "sufficient ties to the community to provide assurance that the
property will be available at the time of the trial." Or it must be
determined that loss of the property represents a "hardship to the claimant,
such as preventing the claimant from working, leaving the claimant homeless,
or preventing the functioning of a business." The government itself, of
course, determines whether the property owner meets these conditions.

Another section of the bill, according to a report from the House Judiciary
Committee, expands the scope of property that can be seized. "The bill
provides that forfeitable proceeds are not limited to the `net' gain or
profit realized from the commission of an offense. Rather, the `gross'
proceeds are forfeitable." The report contends that the Eighth Amendment's
protections against excessive fines "ensures that this remedy does not get
out of hand."

But a system of seizures that ignores the Fourth Amendment is unlikely to
follow the Eighth.

Rep. Hyde continues to support the new bill and hopes to bring it to the
floor before Congress goes into recess Nov. 7, Rick Filkins, counsel to the
Judiciary Committee, told us. "H.R. 1965 preserves all ... of chairman
Hyde's core reforms," Filkins said, and it has "Department of Justice
support, which we think is important to the ultimate success of the bill."

The conditions added to the bill, however, have created a strangebedfellow
coalition of opponents, including the American Civil Liberties Union, the
National Rifle Association, and even some Republican stalwarts who might
otherwise be expected to support Mr. Hyde and the GOP leadership.

Rep. Ed Royce of Fullerton, for example, who supported the original bill, is
working to defeat H.R. 1965. "This is not the reform bill that the
congressman thought Hyde would introduce," a spokesman for Rep. Royce told
us.

Let's hope enough congressmen of both parties follow Mr. Royce's lead and
make sure H.R. 1965 disappears. True reform along the lines of the
original bill will have to wait till 1998.

(The Internet site for FEAR contains the text and specific criticisms of the
bill: http://www.fear.org/ )

Eleanor and Alan Randell
1821 Knutsford Place
Victoria, BC, Canada
V8N 6E3
Email: arandell@islandnet.com
Telephones: Home 2507210356, Work (Alan) 2509522926