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US High Court Curbs Scope of Civil Forfeiture

WHEN Richard Lyle Austin was caught selling cocaine from his auto-body shop near Sioux Falls, S.D., the state moved to seize both his shop and his mobile home, where drugs were found.

This was not one of the more dramatic civil forfeitures in the war on drugs, such as the brief seizure of a $2.5 million yacht in 1988 because less than one-tenth of a gram of marijuana was found in a crew member's pocket.

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But the Supreme Court June 28 used the Austin case to make a landmark decision trimming the government's power to seize property. It ruled for the first time that seizing property is a form of punishment. Therefore, under the constitutional ban on excessive fines, the seizures can be disproportionate to the crime.

In a unanimous decision, the justices remanded Mr. Austin's case back to lower courts to determine whether losing his business and home, worth a total of $38,000, is excessive punishment for his crime.

The court took similar action in a second case on June 28. Ferris Alexander was convicted of selling four magazine editions and three videotape titles, each ruled obscene, in his 13 adult entertainment stores in Minnesota. Because he was convicted of racketeering, his entire business was seized. Three tons of inventory was crushed, the vast majority of it not obscene, and $9 million in cash taken.

Mr. Alexander argued that the forfeiture violated his free-speech rights because the expressive material was destroyed. He lost that argument June 28, but the Supreme Court sent the case back to trial to determine whether the seizures amounted to excessive punishment.

Although law-enforcement agencies make millions of dollars by seizing property through forfeitures, the new decision will not hurt government in the long run, notes David Smith, a Virginia attorney and leading forfeiture expert. Rather, it will force federal authorities to drop the weaker forfeiture cases that raise controversy, he says.

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