Anti-Theft Measure


Few things are more disconcerting than hearing that the House of Representatives has just approved a piece of legislation by an overwhelming margin. This time, though, it's good news.

By a vote of 375 to 48, the House recently passed a bill aimed at curbing the astonishing practice of civil asset forfeiture, in which the government confiscates property it believes can be linked to crime. Since the property itself is accused of wrongdoing–generating cases like U.S. v. 92 Buena Vista Avenue and U.S. v. One 1974 Cadillac Eldorado Sedan–the government need not convict, or even charge, the owner.

Furthermore, because police and prosecutors get a generous cut of the proceeds from federal forfeitures, they have an incentive to target people based on their assets rather than their criminal culpability. Not surprisingly, this system has led to widely publicized abuses in which innocent people have lost their property because of mistaken police suspicions or illegal activity over which they had no control.

One of the first such cases to receive wide attention involved a Nashville landscaper who was carrying $9,000 in cash on a trip to Houston, where he planned to buy plants for his business. Police confiscated the money, presuming that it came from drug trafficking.

Contrary to the claims of law enforcement officials, who imply that such injustices are a thing of the past, forfeiture is still a menace to innocent property owners. In March, for example, a Wichita, Kansas, couple lost their motel because drugs had been sold on the property, despite their attempts to discourage dealers by installing floodlights, putting up fences, and calling the police.

Stories like these have helped build a diverse reform coalition that includes the Eagle Forum, the American Civil Liberties Union, the National Rifle Association, the American Bar Association, and the U.S. Chamber of Commerce. In the House, the cause has united conservative Republicans such as Henry Hyde and Bob Barr with liberal Democrats such as Barney Frank and John Conyers.

These four odd bedfellows, bitter foes during last year's impeachment debate, were the chief sponsors of the Civil Asset Forfeiture Reform Act, the latest version of legislation that Hyde has been pushing since 1993. After the House vote on their bill, they posed for a smiling victory photograph that is not likely to be replicated anytime soon.

Under the Hyde bill, the government could keep seized property only after showing "by clear and convincing evidence" that it was used in or acquired through criminal activity. Currently, the government can seize property based on "probable cause"–in practice, little more than a hunch–and the burden is then on the owner to prove the property's innocence.

The bill would allow owners to recover their property if they can show that it was used for illegal purposes without their knowledge or despite reasonable efforts to prevent it. The bill would also provide an appointed attorney for property owners who cannot afford one, extend the period for challenging a forfeiture, and eliminate the requirement that the owner post a bond.

The legislation, which has not yet been introduced in the Senate, would make it substantially easier for innocent owners to get their property back. But it would still allow the government to seize first and ask questions later, and it would leave intact what amounts to punishment without due process.

The House rejected an amendment by Representative Ron Paul (R-Texas) that would have required the government to convict people before confiscating their property. The Hyde bill's relatively modest approach helps explain why it ultimately attracted such broad support.

Even so, the reforms were too radical for the White House, which said they would make it harder to fight crime. As a president who once taught constitutional law ought to know, that is the nature of civil liberties: By definition, they make life more difficult for the government.

But then, hostility to civil liberties has been the one thread of consistency in an administration often faulted for a lack of ideological commitment. Whether the issue is access to guns or to cryptography, freedom of speech or of association, protection from searches or from seizures, you can predict where Bill Clinton will stand.

When Congress can shock you by voting to limit government power, it is reassuring to know that the president can be counted on to side with the state against the individual.