From: Jim Rosenfield <[j n r] at [igc.apc.org]> Newsgroups: talk.politics.drugs Date: 07 Jul 93 09:24 PDT Subject: NYTimes on SC Forfeiture Decision Justices Restrict Ability to Seize Suspects' Goods By STEPHEN LABATON . Special to The New York Times WASHINGTON, June 28 - In a significant setback for prosecutors, the Supreme Coult ruled unanimously today that the Constitution limits the Government's authority to seize the homes, businesses and other property of criminals and suspects. Rejecting the Justice Department's argument in two cases, the Court found that the Eighth Amendment clause that bars "excessive fines" requires that there must be some relationship between the gravity of an offense and the property that is seized. The Justices were divided about the smaller complexities of the cases and whether the First Amendment could be applied to limit Lhe seizure of books and other material in an obscenity case. But their general and unopposed holding about the application of the Eighth Amendmeni to the area signals a new direction for criminal and civil procedures that govern when dnd how the government can confiscate items like cars from suspected drug smugglers; businesses from accused mobsters and cash from alleged money launderers. The Government had argued that forfelture actions are not punitive but "remedlal" and that the guilt or innocence of the properly owner is "constitutionally irrelevant." The Court did not decide whether the owner's innocence is relevant or even spell out when the Eighth Amendment is violated. Instead, it sent the cases back to the lower courts to devise their own rules about when the seizure of assets is unconstitutionally excessive. In so doing, the justices virtually guaranteed that they would have to revisit an issue they did not address in today's ruling. In one case the Court narrowly rejected a First Amendment challenge to the Government's seizure authorlty under the Federal racketeering law. The Justices decided by a vote of 5 to 4, ruling that the First Amendment did not prohibit prosecutors from taking an entire chain of adult bookstores and movie houses and then destroying thousands of books and other material after finding several obscene items for sale. Powerful New Tool Nonetheless, the Eighth Amendment precedent set in both cases gives defendants a powerful new tool for fighting back when the Government seizes properly, an action that often occurs even before there is a conviction. It was the end of a difficult Supreme Court term (or prosecutors in a rapidly growing area of the law, and it demonstrated the Justices' concern with the increas aggressive use of forfeiture laws. In two other cases decided earlier this term, and on narrower grounds, the Court limited the aurhority of prosecutors to seize money, homes, cars and other assets from drug dealers, white-collar criminals, mobsters, illegal aliens and people suspected of commiting crimes. And. in March, the Court agreed to decide whether the Government csn seize property that has been used in drug crimes without giving the owner advance notice and a chance to contest the action in a hearing. That case will be heard next term. Prosecutors have increasingly used forfeitures since the mid-1980's, when Congress began to adopt more laws that broadened their authority against drug smugglers, money launderers and savings and loan executives suspected of looting their insritutlons. By the end of 1992 the Federal Covernment had seized S2 billion in property, up from S33 million in 1979. Property worth billions more have been sold at auction. Attacks in Congress The procedure for forfeitures that critics and Civil liberties groups contend unfairly favors the Government has recently come under attack from conservative Republicans like Representative Henry J. Hyde of Illionois, as well as liberal Democrates like Representative John COnyers, Jr., of Michigan. Mr. Hyde has introduced legislation and Mr. COnyers is drafting a bill which would make it more difficult for prosecutors to take property. In on case decided today, a North Dakota man had lost his car-repair business and his mobile trailer after selling two grams of cocaine to an undercover agent. The Government had disputed the contention of the defendant, Richard Lyle Austin, that the seizure under a civil forfeiture law had violated the "excessive fines" clause. The Government maintained that the Federal laws that gave it the authority to take Mr, Austin's home and business were remedial because they were intended to permit the removal of tools of the drug trade. It had also said the seizure was a proper way of repaying the government for the expense of law enforcement. Justice Harry A. Blackmun, who wrote the Court's unanimous opinion in the case. Austin v. United States, found that the Eighth Amendment applied to both civil and criminal proceedings and that the forfeiture laws had been intended at least in part to punish the property owner. Property as Wrongdoer While common sense may make that conclusion seem obvious, courts have generally employed a legal fiction that have made the proposition debatable. The fiction is that the property, not the individual, is the wrongdoer, a concept That has enabled the Government to impose a grealer procedural burden on the property owners and make their guilt irrelevant. But Justice Blackmun's opinion which was also signed by Justices Byron R. While, John Stevens, Sandra Day O'Connor and David H. Souter, appeared to question the use of legal fiction as a matter of constitutional law. "If forfeiture had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner," Justice Blackmun said. "Even though this Court has iejected the 'innocence' of the owner as a common-law defense to forfeilure, it conslstently has recognized that forfeiture serves, at least in part, to punish the owner." In a concurring opinion. Justice Anlonin Scalia said the measure of a forfeiture's excessiveness should be the relationship between the seized property and the offense. Justice Anthony M. Kennedy also wrote a concurring opinion in which he questioned Justice Blackmun's reading of the hlstory of forfeiture laws. He was joined by Chief Justlb William H. Rehnquist and Justice Clarence Thomas. 2 Arguments Raised In the second case, Alexander v. United Staets, the owner of a chain of adult bookstores and movie houses forfelted hls businesses and almost $9 million in proflts after he was convict of racketeering by selling obscene material. The defendant, Ferris J. Alexander of Minnesota, had raised the Eighth Amendment argument. He had also maintained that the seizure violated his First Amendment rights by taking and then destroying thousands of copies of books and other materials that were not obscene. While unanimously upholding his Eighth Amendment claim, the Court in an opinion written by Chief Justice Rhenquist, rejected the First Amendment argument by a vote of 5 to 4. In dissent, Justice Kennedy said the Court's decision was "a grsve repudiation of First Amendment principles." "Until now, I had thought one could browse through any book or film store in the United States without fear that the proprietor had chosen each item to avoid risk to the whole inventory, and Indeed to the business itself," Justice Kennedy wrote. "This ominous, onerous threat undermines free speech and press principles essential to our personal freedom." Justice Kennedy's opinion was joined by Justices Blackmun and Ste- vens. In a separate opinion, Justice Souter agreed with the majority that there was no impermissible prior restraint. But he also agreed with the dissent that the First Amendment forbids the forfeiture of any material that is not found to be obscene.