Washington. -- It is one thing for the government summarily to seize a yacht. No problem there. But the question arises: What about the seizure of a house and four acres of land? The Supreme Court now has the question in its lap.
On October 6 the court heard argument in the case of United States v. James Daniel Good Real Property. The case provides an opportunity for a new look at a field of law that sorely needs a close look. Property seizures are valuable tools of law enforcement, but the power to seize is an awesome power. It must be exercised with care.
These are the facts. Acting on information received, police obtained a warrant and raided Good's house in Keaau, Hawaii. This was on January 31, 1985. They confiscated 89 pounds of marijuana and some drug paraphernalia. Good pleaded guilty to a state charge of promoting an illicit drug. He served one year in jail, paid a fine of $1,000 and forfeited $3,187 in cash.
More than four years passed. Good was now living in Nicaragua, where he was teaching carpentry as part of a church project. On August 8, 1989, federal marshals obtained a warrant to proceed against Good's property in Hawaii. The legal theory is that the house itself had violated drug laws in January 1985.
Without a hearing of any sort, marshals seized the land and ordered Good's tenants to pay their rent to the U.S. government. Good challenged the seizure as a violation of his Fifth Amendment right not to be deprived of his property without due process of law.
The Circuit Court of Appeals for the 9th Circuit ruled in Good's favor right down the line. The government had not acted in timely fashion, and the government had not granted the property owner a hearing. Circuit Judge Alfred T. Goodwin said a pre-seizure hearing may not be necessary in the case of a yacht or an automobile or an airplane. These can be sailed away, driven away or flown away "by sundown. . . . But one of the !! unique aspects about a piece of land is that it cannot easily be moved. . . . The government's interest in avoiding a pre-seizure hearing is not significant in this case. The house is not going anywhere."
This will be the second time in recent months that the Supreme Court has considered the government's seizure power. Last term the court heard the case of Richard Lyle Austin, whose mobile home and auto-body shop were seized in 1991 in Sioux Falls, South Dakota. Austin contended that the seizure amounted to an "excessive fine," forbidden by the Eighth Amendment, and the high court agreed.
It's high time for the Supreme Court to look at all four corners of the law on seizures. Almost everyone would agree, I suppose, that the law is a potent weapon against criminals who traffic in illicit drugs. Fines, even large fines, are not much of a deterrent. Jail sentences of a year or two can be suffered as a risk of doing business. Massive seizures of property are something else. In fiscal 1991, the last year for which data are available, the Drug Enforcement Agency alone made 16,000 seizures of property valued at more than $686 million. After deduction of expenses, $643 million was added to the Assets Forfeiture Fund.
One good thing about the system may also be a bad thing. Proceeds of property seizures are distributed in large part to state and local law-enforcement agencies that assist in the productive investigations. The more they seize, the more they get.
This raises the risks inherent in a bounty system. Indeed, in August 1990, the Department of Justice sent a memorandum to law-enforcement agencies. The department was "far short of our goal of $470 million in forfeitures for the fiscal year." Said the attorney general: "We must significantly increase production to reach our budget target."
Seventeen states have filed a brief saying that if the Supreme Court requires pre-seizure hearings for forfeitures of real property, law enforcement will be "seriously impaired." This I gravely doubt. The department's own guidelines say that "before a person can be deprived of his property, he is entitled to a civil trial." Moreover, proceedings must be "expeditious."
There was no trial, and nothing remotely expeditious, in what happened to James Daniel Good. The fellow broke the law, went to jail, served his time, and now sands floors in Hawaii to make a living. To lose his home four years after the crime, without a hearing, strikes me as an abuse of the seizure power.
James J. Kilpatrick is a syndicated columnist.