Needed Course Correction in Drug War : Supreme Court blows the whistle on outrageous forfeitures of assets

This country’s tough war against illegal drugs has produced some clear victories, including a decline, according to researchers, in the number of casual marijuana and cocaine users and a sea change in public attitudes toward drug use.

But the high-profile assault on drugs has also produced some unintended negative consequences as well. Among them is the de-emphasis of drug treatment and rehabilitation in recent years, and the imposition instead of harsh and inflexible federal sentencing laws that mandate long jail terms for even first-time possession of small quantities of drugs.

Federal seizures of the personal property of suspects in drug cases have also proved problematic. Such seizures are becoming more common; in 1992 the federal government seized $2 billion in property, up from $33 million in 1979.

Prosecutors justify the seizures, in part, as a way to recoup the cost of law enforcement. But the practice, in which property owners often are given no notice and no recourse, has come under increasing attack from Republicans as well as Democrats as disproportionately punitive. In this light, the Supreme Court’s decision last week trimming the power of federal agents to seize personal assets in drug cases is a much-needed course correction in the war on drugs.

The case arose from Richard Austin’s 1990 arrest on federal drug trafficking charges. The South Dakota man subsequently pleaded guilty to one count of possessing two grams of cocaine with intent to distribute and was sentenced to seven years in jail. A forfeiture proceeding followed. Prosecutors charged that Austin’s arrest warranted seizure of both his auto body shop and trailer home, with a combined value of $40,000, because they housed the tools of his drug trade, even though the property was worth far more than the cocaine.

But a unanimous Supreme Court held that the seizure violated the 8th Amendment’s prohibition of “excessive fines.” The court also required that there be some relationship between the gravity of an offense and the property that is seized.

Yet the court did not spell out how judges should determine whether a forfeiture is excessive under the Constitution. Instead, it sent the case back to the lower courts to devise their own rules, an action certain to generate many more appeals.

But fine-tuning criminal procedure is not the long-term answer to drug use and the crime that it spawns. The only real hope lies in a greater public emphasis on effective treatment and rehabilitation.