From: [s--h] at [blkbox.com] (Jeremy Byrn)
Newsgroups: talk.politics.drugs
Subject: Article from The Houston Post
Date: 25 Jul 1994 04:37:22 GMT

(All typos attributable to me)

Court Ruling likely to alter war on drugs
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

: Says forfeiture of assets can be double jeopardy :


by Matt Schwartz of the Houston Post Staff

	A state appeals court could silence one of law enforcement's 
biggest guns in the war on drugs, ruling this week that authorities 
cannot seize assets of suspected drug offenders if they already have been 
convicted and punished for the same crime.
	That one-two punch, the 14th District Court of Appeals concluded, 
violates double-jeopardy provisions of the U.S. Constitution.  The 
decision could force one of two significant changes:
	-  Authorities would have to abandon forfeitures as a tool in the 
fight against the drug trade.
	-  The state Legislature would have to change the Texas Code of 
Criminal Procedure.

	Don Strickland, Harris County first assistand district attorney, 
said Friday that his office would appeal the opinion and would continue 
to file forfeiture suits until told not to by higher courts.  A state 
attorney general's spokesman did not return telephone calls Friday.
	If the opinion is upheld, Strickland said, prosecutors might drop 
forfeitures altogether, or face choosing between putting someone in jail 
or taking their assets.
	"I think the Legislature and people are going to be repulsed by 
that concept," Strickland said, adding that the law probably would be 
changed.
	According to the district attorney's office, the state seized 
just over $4 million in 425 Harris Country cases last year.
	The opinion in Danny Fant vs. State of Texas, handed down 
Thursday, relied on three U.S. Supreme Court rulings to determine that 
asset forfeiture and criminal sentences are both punishments.  Therefore, 
the justices ruled, unless both punishments are doled out in the same 
proceeding, it would violate the constitutional prohibition against 
double jeopardy.
	Justice George T. Ellis dissented, writing that forfeiture was 
not a punishment.  Even if it was, he said, Fant did not prove it was 
disproportionate to the crime with which he was charged.
	The legal sticking point is that asset forfeiture is a civil 
action; drug trials are criminal proceedings.  Civil and criminal law 
have differing standards of discovery and evidence.  For example, a 
criminal conviction requires proof beyond a reasonable doubt, whereas a 
civil victory requires only a preponderance of the evidence.
	Because of that, combining civil and criminal actions in the same 
trial would be impractical, said Alan Curry of the Harris County district 
attorney's appellate division.  And putting the forfeiture option in the 
hands of a jury likely would require a change in state law, he said.
	In Fant's case, the suspected drug dealer was arrested and 
charged with possession of drugs with intent to deliver last year.  Three 
days later, authorities filed a civil forfeiture lawsuit against him in 
relation to the same arrest.
	Fant settled the forfeiture suit by paying $3,823 to the state.  
He then filed for a writ of habeas corpus, arguing that double jeopardy 
prohibitions barred the state from prosecuting him on the drug charge.
	In granting Fant's writ of habeas corpus, the appeals court cited 
three U.S. Supreme Court decisions since 1989 in which the high court 
ruled that civil forfeitures are or could be characterized as punishment.
	"If a sanction serves the goals of punishment, namely retribution 
and deterrence, even if it has remedial goals as well, then it should be 
characterized as punishment for purposes of a double jeopardy analysis," 
Justice Paul C. Murphy wrote.
	Prosecutors argue the asset forfeiture law is used to pay for law 
enforcement purposes and chemical dependency treatment programs, not 
punishing the accused.
	Prosecutor Curry said there were two other appeals court 
decisions in Harris Country that conflict with the Fant opinion.
	One of those was a decision by the First District Court of 
Appeals last month in which the justices ruled that a forfeiture alone is 
not enough to invoke double jeopardy protections.
	Just Margaret Garner Mirabal wrote in Kendall Johnson vs. State 
of Texas that the amount of the forfeiture "must be overwhelmingly 
disproportionate to the damages appellant caused."  Simply put, the court 
ruled, Johnson's forfeiture of $11,574 in cash, a 1989 BMW and jewelry 
was not a punishment because the suspected drug offender had been 
indicted for possessing 400 grams of cocaine.
	"They looked at the amount, instead of the broad issue," attorney 
Stanley Schneider said of the Johnson case.
	Ironically, Schneider also represented Fant in the conflicting 
appeal.  Even if Fant is upheld, he said, the opinion would not affect 
past cases because the issue has to be raised before trial.
	But it almost certainly will be adopted by defense attorneys who 
would try a strategy of agreeing to a forfeiture to avoid a criminal 
prosecution, authorities said.
	Attorney Jim Healey said he has been trying that same tactic for 
years, with some success at getting charges dropped in smaller counties.
	"Harris County hasn't accepted that one," Healey said.  "Some of 
the smaller counties, that's a big boost to get $5,000."