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When Federal Drug Laws Create Havoc For Citizens

IT was Friday afternoon, just before New Year's. Walter Cwikla, a state safety adviser, was behind his house, chopping firewood. His wife, JoAnn, was grocery shopping. Unnoticed, a federal agent walked to their front door where he posted an official warning - their home was being seized by the United States government.

Federal attorneys claimed that years before, the Cwiklas' garage had been used briefly to store drugs for a marijuana trafficker. The government's ``proof'': testimony from anonymous witnesses.

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Returning home, Mrs. Cwikla discovered the seizure notice. ``I almost passed out,'' she recalls. ``I couldn't believe it. I thought they had the wrong person.... It was terrible. I lost 20 pounds.''

That was 1989, yet today the Cwiklas' troubles persist. The case still has not come to trial. Legal fees are piling up. The family's finances are drained. The government offered to ``settle'' if the Cwiklas will pay $25,000, but they refused. ``My husband ... was livid,'' Mrs. Cwikla says.

In the government's war on narcotics, the Cwikla case is symbolic. Federal and state lawmen, using expanded powers granted by Congress in the 1980s, can create financial, emotional, and legal havoc for ordinary citizens.

JoAnn and Walter Cwikla are accused of no crime. No illegal drugs were ever found on their property. No federal law enforcement official has ever searched their house. Yet under asset-forfeiture laws passed by Congress during the Reagan presidency, US officials can confiscate their property, even on hearsay testimony, without a criminal conviction.

Controversial cases like the Cwiklas' can be found from coast to coast. Jon Schoenhorn, the Cwiklas' attorney, compares the enforcement of drug laws to ``the communist witch hunts'' of the 1950s. Just an accusation of illegal behavior can be disastrous. Mrs. Cwikla charges: ``They just want to ruin your life.'' Reagan-era laws

Critics claim that the Reagan-era drug laws are dangerously flawed. They permit government agents in drug cases to bypass criminal procedures - including constitutional safeguards - to impose huge civil penalties, an area in which the burden of proof is much less stringent.

Further, when law enforcement agencies seize property, they usually are permitted to keep the loot - whether it is cash, real estate, airplanes, or vehicles. The more they seize, the more they get.

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Grim stories about zealous enforcement of the drug laws are raising cries of alarm from defense attorneys, constitutional scholars, lawmakers, and the news media.

* In Ventura County, Calif., officers stormed into the home of Mr. and Mrs. Donald Scott at Trails End Ranch in search of marijuana. Mr. Scott was shot dead. No drugs were found. Later, the county district attorney accused state and federal lawmen of being motivated by a desire to seize Scott's valuable ranch, and share the proceeds among various agencies.

* In Martin County, Fla., Customs agents and sheriff's deputies searched a newly purchased boat being delivered to Craig Klein, who was then a professor at Jacksonville University. In their hunt for illegal drugs, the officers punched 30 holes in the hull, ruptured the fuel tank, ripped out woodwork, and destroyed the engine. Again, no drugs. Damage, $30,500. The boat was sold for scrap.

* In Hamden, Conn., the residence of Paul and Ruth Derbacher was seized after marijuana and cocaine belonging to their grandson was found in their home. They had raised the grandson since he was 10. The government sold the grandparents' home, but in a compromise that a US attorney calls ``about as fair as you can get,'' the government gave the couple a $25,106.46 check for a portion of its value. A state judge told the Derbachers, who now live in an apartment: ``You are probably only guilty of being too tolerant of a criminal grandson.''

Congress was targeting drug kingpins when it passed tough forfeiture laws during the last decade. However, critics say the laws fall all-too-frequently on either small-time crooks or innocent citizens.

``They've gone overboard,'' says Robert Casale, a Connecticut attorney who represented the Derbachers. After battling the government in several forfeiture cases, he complains: ``They didn't do this in communist-bloc countries. How can they justify doing it here?''

Now the pendulum may be swinging away from the drug enforcers. Congress is investigating reports of abuse by lawmen. The California legislature, angered by the Scott case and other excesses, recently refused to extend that state's forfeiture law. And the courts have begun limiting forfeiture powers.

Rep. Henry Hyde (R) of Illinois and Rep. John Conyers Jr. (D) of Michigan are leading a fight in Congress to handcuff the government's power to forfeit property. Representative Hyde's bill now has 40 co-sponsors, divided almost equally between Republicans (23) and Democrats (17).

The US Supreme Court, in what could become a landmark decision (Austin v. United States), ruled unanimously on June 28 that civil forfeitures must be levied in proportion to the crime committed.

David Smith, an attorney who was associate director of the Justice Department's Asset Forfeiture Office in the 1980s, suggests that the Austin ruling could eventually limit the government's ability to seize ``family farms and homes for growing a small quantity of marijuana.''

The prospect of losing their sweeping powers to forfeit property alarms law enforcement officials.

Sheriff Johnny Mack Brown of Greenville County, S.C., calls forfeiture ``the greatest thing since apple pie.'' Mr. Brown, who is president of the National Sheriffs' Association, says it is ``one of the most effective tools that law enforcement has had in many, many years.''

Charles ``Bud'' Meeks, executive director of the sheriffs' association, concedes that there may be cases in which drug enforcement officers were ``overambitious.'' But to wipe out forfeiture laws would be ``to throw out the baby with the bath water.'' Origins of forfeiture

The concept of forfeiture originated in Medieval England. It is based on the legal fiction that property, like persons, can be ``guilty'' of wrongdoing. If a house is allegedly involved in the sale of illegal drugs, for example, the government can ``arrest'' it. That's what happened to the Cwiklas' house, and thousands like it.

The US got into the forfeiture business more than 200 years ago, when the First Congress in 1789 passed a law permitting the seizure of ships and cargoes involved in smuggling.

Since those early days, civil forfeiture laws have remained a regular feature of American jurisprudence. However, it was only in 1984, when Congress targeted drug traffickers, that forfeiture began to play a major role in domestic law enforcement.

Today, modern civil forfeiture law ``is still in its relative infancy,'' says Cary Copeland, director of the Justice Department's Executive Office for Asset Forfeiture. Federal officials are trying to strengthen the program, while also adding rules that will protect the innocent.

Since 1984, most assets seized in drug cases are turned over to law enforcement agencies. Previously, the money went to the US Treasury.

Recent federal forfeiture statutes were passed amid an anti-drug fervor that swept the country during the Reagan-Bush years. Public outrage was fueled by drug-related street killings, property thefts, violence in schools, and a growing number of deaths by drug overdose.

Forfeiture, a civil action, bypasses the usually complex and time-consuming rules imposed on criminal prosecutions. It permits federal, state, and local police agencies to act swiftly, on slim evidence, to hit drug kingpins where it really hurts - by grabbing their bank accounts, their airplanes, their fancy cars, and their luxurious homes.

Since 1985, federal agencies, working with local and state police, have confiscated approximately $3 billion in cash and property. Federal agencies have shared hundreds of millions of dollars in seized assets with local law enforcement agencies, which have used the money to purchase new helicopters, electronic equipment, and vehicles to wage the war on drugs. Over $500 million of seized assets has gone into federal prison construction. Millions more are used to finance additional federal investigations.

Yet this widespread ``success'' alarms some attorneys and scholars. They claim that the government is threatening major safeguards in the Bill of Rights, including the Eighth Amendment's protection against ``excessive fines.''

The law also bypasses the usual presumption of innocence. It requires a homeowner whose property is seized to prove that no crime took place on that property. Forfeiture law presumes the ``property'' is guilty until proven innocent.

Take the Cwikla case. The government need not prove ``beyond a reasonable doubt'' (as in criminal cases) that JoAnn and Walter used their home to store drugs. Instead, the Cwiklas must prove that their home was not used to store drugs - the burden of proof falling more heavily on them, not the government.

Abraham Goldstein, a scholar at the Yale University School of Law, sees a significant danger in all of this. Professor Goldstein says the government runs the risk of ``displacing criminal sanctions with equally effective or more effective so-called civil remedies, some of which are very draconian financially, catastrophic in their impact.''

Using civil penalties, government can ignore safeguards that have grown over hundreds of years with criminal processes, Goldstein says. ``I think the government is going further than it should,'' he observes.

Mr. Copeland disagrees. He observes that federal officials were involved in more than 175,000 seizures since 1985, yet few were controversial. Even the contested cases are often ``so distorted that they are unrecognizable'' in press reports, he insists.

One of those is the Cwikla case, he notes. While a Justice Department report concedes that there is ``no evidence'' that Walter Cwikla did anything wrong, it cites testimony from a known drug trafficker that JoAnn Cwikla ``was present and assisted'' when marijuana was stored in a room over her garage.

US attorney John Hughes says the government tried to be fair to the Cwiklas. It agreed that if JoAnn passed a lie detector test, the house would be theirs. ``She failed,'' he says.

``I was really nervous,'' JoAnn explains. ``You get nervous [even though] you know you're saying the truth.''

So the Cwikla case moves toward a trial, probably later this year. Mr. Schoenhorn, representing the Cwiklas, says he is ready: ``Of all the [hundreds of] cases I've read and I'm familiar with, and I've represented, this case represents the best opportunity to have the government lose and lose big.''

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