Where I Stand -- Mike O'Callaghan: Much too early to cheer

Mike O'Callaghan is the Las Vegas Sun executive editor.

ANY CHEERING about the passage of HR1658 is premature. It's a change in the federal civil forfeiture laws, which provide little, if any, protection for innocent people who have their property grabbed by police officials. Since 1979 the feds have seized more than $5 billion of property and cash and the only relief victims have received has been from the courts, which is oftentimes too late at too great of an expense.

Last year the U.S. Supreme Court struck another blow for victims of the forfeiture law. Hosep Bajakajian, along with his wife and two daughters, was stopped June 9, 1994, when boarding a plane at Los Angeles International and relieved of $357,144. It was all legally acquired cash, but the Justice Department argued that the government has the power to seize and keep it, even if Bajakajian is innocent. Bajakajian's money was seized under the Bank Secrecy Act of 1970, because he had not properly declared the amount of cash he was carrying as is required by law.

Justice Clarence Thomas, writing for the majority, said, "we now hold that a punitive forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of defendant's offense." Thomas went on to explain "respondent's violation was unrelated to any other illegal activities. The money was the proceeds of legal activity and was to be used to repay a lawful debt. Whatever his other vices, respondent does not fit into the class of persons for whom the statute was principally designed: He is not a money launderer, a drug trafficker or a tax evader."

Several years earlier Las Vegan Billy Munnerlyn, innocent of any charges, lost his only source of income when the DEA seized his jet aircraft. It took more than four years to get his plane back and broke him financially. Even after all was said and done he had to pay the government $7,000 for the plane and it cost another $100,000 to again make it airworthy.

In 1993 the U.S. Supreme Court had seen enough of this nonsense when it sent back the case of South Dakota's Richard Austin. The lower court had allowed the government to seize and sell his trailer and auto shop after he pleaded guilty to selling $200 worth of cocaine. They sold his property for $32,000, but the Supreme Court said that this was an excessive fine and cruel and unusual punishment.

Seven years ago the House Judiciary Committee, under the direction of Chairman John Conyers Jr., D-Mich., held hearings and proposed a bill to change the law. The Department of Justice opposed the proposed bill. In 1993, 1995 and again in 1997, Chairman Henry Hyde, R-Ill., working with Conyers, brought forth bills to make needed changes and the bills were either killed or gutted by the Department of Justice.

James Bovard, writing in the Wall Street Journal about Hyde's 1997 bill, pointed out that it only increased the power of the government to seize the property of Americans. How did this happen? Bovard writes, "The Justice Department strongly objected to the bill and lobbied Mr. Hyde to enact sweeping expansions of prosecutors' forfeiture power. The day before marking up the bill last June, Mr. Hyde sidetracked his 15-page reform bill and pledged himself to a new 64-page bill -- with almost all the new material written by Justice Department lawyers. This is like letting burglars write the laws on breaking and entering, since many of the worst forfeiture abuses are committed by Justice Department employees."

Here it is two years later and a new bill that gives some protection from phony seizures of property of Americans. This bill will give people the protection most thought they already had when dealing with their government. For example, it will require the government to prove the seized property was part of a criminal activity, and have "clear and convincing" evidence of this; pay interest on seized cash that is returned to owner; allow a person to sue for damage to property when held by the government; federal judges have the power to provide lawyers for property owners without necessary funds when attempting to get property returned; easier access to the courts and allows judges to release disputed property to the owner if a "substantial hardship" is shown.

Good, I'm happy that the House of Representatives has finally produced a bill that should have been passed long ago. This column has, for the past 10 years, pointed to the needs met by HR1658 and every time something good has happened the Department of Justice kept it from becoming a reality.

Don't count on any cheers from this corner until all of these changes provided by HR1658 are passed by the Senate and signed into law by President Bill Clinton. You see, the Department of Justice doesn't like this bill and will do everything possible to water it down, gut it or kill it. Justice hasn't lost yet in Congress and only the courts have provided Americans any relief from the tyrannical use of forfeiture laws.

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