Pubdate: Wed, 26 Apr 2000
Source: Times-News, The (ID)
Copyright: 2000 Magic Valley Newspapers
Contact:  P.O. Box 548, Twin Falls, ID 83303
Fax: (208) 734-553
Feedback: http://www.magicvalley.com/submit.html
Website: http://www.magicvalley.com/

ASSET FORFEITURE CAN LEAD LAW AGENCIES INTO MAZE OF CONFLICT-OF-INTEREST ISSUES

America's war on drugs has claimed some innocent victims over the years -- 
including, at times, the Fourth Amendment of the Bill of Rights. In case 
you don't remember it, the Fourth Amendment says, "The right of the people 
to be secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated ...."

Overzealous cops and prosecutors sometimes stumble over the Fourth 
Amendment in their haste to separate drug dealers from their ill-gotten 
gains. In addition to snaring drugs, the net cast by law enforcement also 
includes cash, cars, firearms and sometimes even homes.

Asset forfeiture, as it's known, is a tricky business when it intersects 
with private property rights. The U.S. Congress recognizes this, which is 
why it recently approved a bill limiting Uncle Sam's authority to seize 
private property.

Here in Twin Falls County, Prosecutor Grant Loebs has placed generally 
reasonable restrictions on civil asset forfeiture. His challenger in the 
Republican primary, Mark Murphy, wants to expand asset forfeiture into 
areas where it doesn't belong. Voters would be wise to keep this 
distinction in mind next month.

Asset forfeiture is pretty straightforward in obvious drug cases. It's fair 
game if the seized item was acquired with the proceeds from illegal 
activities of a drug dealer who was convicted on criminal charges.

But many drug cases aren't so clear-cut. When teenagers are caught selling 
marijuana out of their parents' home, is the home fair game for seizure? Or 
a ne'er-do-well dealing crank out of his wife's car?

More fundamentally, should cops and prosecutors be allowed to seize a 
suspected drug dealer's assets when they can't convict the suspected dealer 
on criminal charges? It happens occasionally, because criminal cases 
require proof "beyond a reasonable doubt." Civil cases have a lower 
standard of proof, a mere "preponderance of evidence."

Thus, a citizen of the United States can be stripped of his house, boat, 
truck, guns and cash without ever being convicted of a crime. Is that fair?

If this sounds familiar to some Magic Valley residents, it should. Former 
Twin Falls County Prosecutor K. Ellen Baxter and her deputy, Frank Nichols, 
went overboard in their drug-fighting efforts in the early '90s. There were 
many reasons why some of their cases were flawed, not the least of which 
was that their ill-starred drug task force was partially funded with -- you 
guessed it -- seized assets.

We're no friends of drug dealers, and we don't shed a tear when they are 
stripped of ill-gotten gains following a criminal conviction. But we're 
also leery of law enforcement agencies using asset forfeiture to line their 
own nests. Once cops and prosecutors develop an appetite for seized assets, 
they are walking an ethical tightrope that often leads to a conflict of 
interest.

In Twin Falls County, 30 percent of the proceeds from seized assets goes 
into a special drug enforcement fund in the prosecutor's office. The other 
70 percent goes into a similar fund maintained by the law enforcement 
agency that made the seizure.

Though not used to pay salaries, seized assets do subsidize other expenses 
in the prosecutor's office, local police departments, and the county 
sheriff's office. The amounts are small, totaling only $26,256, eight cars 
and several guns in 1998, but the underlying principle is significant.

Transferring seized assets from drug dealers to the people who arrested and 
prosecuted them sets up a classic conflict of interest. It's bad enough 
when the dealer is convicted on criminal charges, but it would be 
intolerable in the absence of a criminal conviction.

Asset seizures have been abused elsewhere, and it could happen here again. 
The best way to ensure that it doesn't is to invest seized assets in 
society's broader needs, not law enforcement budgets.
- ---
MAP posted-by: Keith Brilhart