Banana-republic justice in name of fighting drugs


March 23, 1997|By BRIAN SULLAM

TYRANNY HAS NEVER been acceptable in American life, yet Larry Tolliver, Anne Arundel County's newly appointed police chief, apparently believes that abusing citizens' rights is an acceptable trade-off in the fight against crime.

Chief Tolliver has instituted a policy of seizing cars in all drug cases, regardless of whether they are felony possession and distribution or misdemeanor possession cases. His policy is legal. Maryland law gives police broad authority to seize cars from defendants accused of drug crimes.

The question is not one of legality. It is about costs and benefits.

Consider the meager benefits.

Chief Tolliver believes his "zero tolerance" policy, which mandates confiscating cars even for the slightest amount of drugs, sends the message that his department is "tough" on drugs.

The chief also believes that fear of losing a car may deter people from buying, selling or possessing drugs. There is scant evidence that seizing cars deters drug use any more than the reinstitution of the death penalty has curbed murder. Penalties rarely discourage bad behavior, but they are effective in punishing the guilty.

The costs of the policy are considerable. Mr. Tolliver's "zero tolerance" approach to drug enforcement policy punishes the innocent along with the guilty, as well as trampling the rights we enjoy as citizens.

Under Mr. Tolliver's policy, the constitutional right to be secure "in their persons, houses, papers and effects" is severely eroded.

The Martin injustice

Anne Arundel police have been instructed to seize cars even if drugs are not actually found in the car. Take the case of Mary Diane Martin.

On March 3, her daughter allegedly altered a legitimate prescription for Percoset, a prescription painkiller that contains narcotics, so that she would receive 48 instead of the 18 her dentist prescribed. She tried to fill the prescription at two different pharmacies. A suspicious pharmacist alerted the police, who arrested her and seized the car she was driving.

There are two interesting twists to this story.

First, she never possessed any drugs because she could not get the prescription filled.

Second, the seized car was not her's, but her mother's 1987 "rusted out" Mustang.

Mrs. Martin, who works a 10: 30 p.m. to 7 a.m. shift as a cashier at a Pasadena gas station, has been without her car for more than two weeks. She has had to rely on her son or husband to get her to and from work. It took weeks for the state's attorney to determine that the car was indeed hers and not her daughter's. Mrs. Martin could only regain possession of her car after signing a stipulation that her daughter could not drive the car for a year and paying $250 for towing and storage.

"I was so mad about that," Mrs. Martin said. "They treated me like a criminal. I had to fight tooth and nail to get my car back. Why should I have to pay when I didn't do anything wrong?"

Under the seizure law, her car is deemed to be guilty property. Even though Mrs. Martin is an uninvolved, innocent person, she is nevertheless forced to pay an onerous fine to regain use of her car.

If she were a criminal defendant, the burden of proof would be on the government. Police and prosecutors have to convince a jury beyond a reasonable doubt she is guilty. Under the forfeiture statute, Mrs. Martin has to prove the innocence of her car, and even after doing that, she still must pay a hefty charge, which is tantamount to admitting guilt.

This kind of justice might make sense in a South American banana republic. It makes no sense in the United States of America. Seizing property must require a higher threshold. The government should have a compelling reason for taking a citizen's property and for requiring a payment to redeem it. That compelling reason is not present in this case nor will it be in others that are likely to crop up under Chief Tolliver's policy.

Even if the current Maryland statute allows police to seize under these circumstances, a sensible police chief should instruct his men not to seize cars in simple possession cases. Not only are the criminal charges usually dropped or reduced later, but this overreach generates the worst kind of publicity for the police department.

Seizing cars should be reserved for those cases when the owners used drug profits to buy them or the cars were used in the drug trade. In their zeal to attack drug trafficking and abuse, lawmakers have given police and prosecutors powers to impose harsh and odious penalties in drug enforcement that are not available in other criminal cases.

Do we allow police to seize the shoes of jaywalkers? Do we allow police to routinely confiscate cars used to transport burglars, rapists or white-collar criminals? Of course not, because such seizures would violate our fundamental notions of fairness and justice.

When it comes to drugs, we have become too tolerant of tyranny. There's no better description for what Chief Tolliver is pursuing.

Brian Sullam is The Sun's editorial writer in Anne Arundel County.

Pub Date: 3/23/97

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