March 9, 1998

THE DRUG WAR'S
HIDDEN ECONOMIC AGENDA

By ERIC BLUMENS0N & EVA NILSEN

A number of aggrieved and hapless citizens converged on Washington during the summer of 1996, invited by House Judiciary Committee chairman Henry Hyde to recite their misfortunes at the hands of the government's drug police. All had had their property taken by police, then were let go and never prosecuted. All were innocent of wrongdoing. Remarkably, the hearing was not about corrupt cops shaking down helpless individuals but about the law authorizing the police to do what they did--the civil forfeiture law, which transfers ownership to the government of any property that "facilitated" a drug crime. Last fall, the Judiciary Committee completed its work, proposing a series of partial and controversial reforms now pending before Congress.

The stories were sad survivors' tales, each recounting a moment of unexpected financial ruin followed by years of mostly fruitless attempts to undo it. A pilot told of how the government destroyed his air charter business: The Drug Enforcement Administration seized his airplane when a drug dealer chartered it; $85,000 in legal fees later, the pilot filed for bankruptcy and became a truck driver. A landscaper testified that while on a purchasing trip, he had been stripped of $9,000 by an airport drug interdiction unit, then sent home without a receipt, on grounds that only drug dealers carry so much cash. Legislators also heard the tale of Mary Miller (a pseudonym), a 75-year-old grandmother dispossessed of her home for the sins of her fugitive, drug-dealing son.

When accounts like these appear in the newspapers, they seem to be aberrations--mishaps by some unskilled police officers or the handiwork of a few rogue cops. Few people believe that police routinely await the chance to harass and impoverish elderly women like Mrs. Miller. Yet the twenty police who confronted her were not keystone cops; they included not only local police officers but also agents from the sheriff's office, the U.S. Marshals Service, the F.B.I. and the I.R.S. These officers were probably much less concerned with harassing Mrs. Miller than with her property. By their presence at the seizure, the local agencies and the Justice Department each acquired a claim to a share of the house. Miller was on the wrong side of a police funding raid, and since 1984 many thousands of other Americans have been as well.

Nineteen eighty-four was the year that Congress rewrote the civil forfeiture law to funnel drug money and "drug related" assets into the police agencies that seize them. This amendment offered law enforcement a new source of income, limited only by the energy police and prosecutors were willing to put into seizing assets. The number of forfeitures mushroomed: Between 1985 and 1991 the Justice Department collected more than $1.5 billion in illegal assets; in the next five years, it almost doubled this intake. By 1987 the Drug Enforcement Administration was more than earning its keep, with over $500 million worth of seizures exceeding its budget.

Local law enforcement benefited from a separate "equitable sharing" provision, which allows local police to federalize a forfeiture. This law gives police a way to circumvent their own state forfeiture laws, which often require police to share forfeited assets with school boards, libraries, drug education programs or the general fund. Instead, local police can conspire with the U.S. Justice Department to evade these requirements through paperwork: If a U.S. Attorney "adopts" the forfeiture, 80 percent of the assets are returned to the local police agency and 20 percent are deposited in the Justice Department's forfeiture fund. As of 1994 the Justice Department had transferred almost $1.4 billion in forfeited assets to state and local law-enforcement agencies. Some small-town police forces have enhanced their annual budgets by a factor of five or more through such drug-enforcement activities.

These financial benefits are essentially there for the taking, thanks to expansive laws from Congress and a green light from the Supreme Court. Since the forfeiture law extends to any property that "facilitated" a drug crime, it covers a potentially enormous class. Cars, bars, homes and restaurants have all been forfeited on grounds that they served as sites for drug deals, marijuana cultivation or other drug crimes. Are the bills in your wallet forfeitable? Probably, because an estimated 80 percent of U.S. paper currency has been contaminated by cocaine residue, which has been held sufficient by some courts to warrant forfeiture. Meanwhile, according to the Supreme Court, few constitutional safeguards apply to forfeiture cases, in which the seized property is deemed the defendant (as in United States v. One 1974 Cadillac Eldorado Sedan) and the defendant is presumed guilty. Owners who want to contest seizures must put up a bond, hire a lawyer and rebut the presumption of guilt with proof that the property is untainted by criminal activity. There is no constitutional requirement that the owner knew of any illegal activities, and forfeiture may occur even if the owner is charged and acquitted. In other words, if you are either related to a drug dealer or mistaken for one, you may find yourself legally dispossessed of your property without effective recourse.

There is, of course, a clever symmetry in the forfeiture law. It makes for some appealing soundbites, like former Attorney General Dick Thornburgh's boast that "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." According to a 1993 report on drug task forces prepared for the Justice Department, we can expect entire police agencies to be funded in this way. Heralding the prospect of "free" drug-law enforcement, the report noted that "one 'big bust' can provide a [drug] task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance."

But agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. The consequence is an extraordinary degree of police secrecy and freedom from legislative oversight. The prospect of a self-financing law-enforcement branch, largely able to set its own agenda and accountable to no one, might sound promising to Colonel North or General Pinochet, but it should not be mistaken for a legitimate organ in a democracy. It was anathema to the Framers, who warned that "the purse and the sword ought never to get into the same hands, whether legislative or executive," and sought to constitutionalize the principle by establishing a government of separate branches that serve to check and balance one another.

Whether forfeiture's financial rewards will prove large enough to spawn a permanent, fully independent sector of unaccountable law-enforcement agencies is not yet clear. What is clear is that these rewards have already corrupted the law-enforcement agenda of agencies that have grown dependent on them. At the Justice Department, a steady stream of memos exhort its attorneys to redirect their efforts toward "forfeiture production" so as to avoid budget shortfalls. One warns that "funding of initiatives important to your components will be in jeopardy if we fail to reach the projected level of forfeiture deposits." Several urge increasing forfeitures "between now and the end of the fiscal year." The department's task force study bluntly suggests that multi-jurisdictional drug task forces select their targets in part according to the funding they can produce.

What happens when law-enforcement agencies rewrite their agendas to target assets rather than crime? Contemporary police, prosecution and court records furnish the answer. As expected, they disclose massive numbers of seizures, a large majority of which are unaccompanied by criminal prosecution. They also show a criminal justice system held hostage to the exigencies of law enforcement's self-financing efforts, endangering the public welfare in at least three ways:

§ Distorted Law-Enforcement Policies. The forfeiture reward scheme has heightened police interest in drug-law enforcement, but with badly skewed priorities. Economic temptation now hovers over all drug-enforcement decisions: Methamphetamine distribution may demand more enforcement, for example, but targeting marijuana deals is usually far more profitable because methamphetamine transactions tend to occur on condemned or valueless property. The Justice Department's study suggests precisely this focus in noting that as asset seizures become important "it will be useful for task force members to know the major sources of these assets and whether it is more efficient to target major dealers or numerous smaller ones."

One example of skewed priorities is the "reverse sting" that targets drug buyers rather than sellers, a now common tactic that was rarely used before the law allowed police departments to retain seized assets. The reverse sting is an apparently lawful version of police drug dealing in which police pose as dealers and sell drugs to unwitting buyers. Buyers may be less dangerous and less culpable, but operations against them are easier and safer, and reliably result in seizure of the buyer's cash. According to one participant in these operations, in his police force reverse stings "occurred so regularly that the term reverse became synonymous with the word deal." A similar motivation may underlie the otherwise baffling policy adopted by both the New York City and Washington, D.C., police shortly after the forfeiture retention amendments were passed, directing police to seize the cash and cars of people coming into the city to buy drugs. Of course, arresting buyers before the sale means that the drugs that would have been purchased will continue to circulate freely. But as former New York City Police Commissioner Patrick Murphy explained to Congress, forfeiture laws give police "a financial incentive to impose [spot-check] roadblocks on the southbound lanes of I-95 which carry the cash to make drug buys, rather than the northbound lanes, which carry the drugs. After all, seized cash will end up forfeited to the police department, while seized drugs can only be destroyed."

Worse, by linking police budgets to drug-law enforcement, forfeiture laws induce police and prosecutors to neglect other, often more pressing crime problems. These officials make business judgments that can only compete with, if not wholly supplant, their broader law-enforcement goals. The Justice Department has periodically made this practice official policy, as in 1989, when all U.S. Attorneys were directed to "divert personnel from other activities" if necessary to meet their commitment to "increase forfeiture production."

§ Unjust Treatment. For law-enforcement agencies dependent on forfeiture income, fairness, too, may be a luxury they can ill afford. This is most obvious at the sentencing of drug offenders, where forfeiture laws provide an avenue for affluent defendants to buy their freedom. Plea bargains are struck that commonly favor kingpins willing to forfeit their assets and penalize "mules" with nothing to trade. In eastern Massachusetts, Boston Globe reporters found that agreements to forfeit $10,000 or more bought elimination or reduction of trafficking charges in almost three-quarters of such cases. The prosecutors involved had a compelling financial reason to recalibrate the scales of justice in this way because 12 percent of their budgets was financed through forfeiture income. At the federal level, Federal Circuit Court Judge Juan Torruella has noted that in his experience, penalties for drug trafficking are imposed on the less culpable, while "the 'big fish' are able to work out deals with the government which may leave them with light sentences or even without any prosecution." It is not a good omen that Attorney General Janet Reno recently requested that all U.S. Attorneys consult forfeiture specialists before settling criminal cases.

§ Police Lawlessness. Finally, growing numbers of law-enforcement agencies have been morally and sometimes criminally deformed by their dependence on drug war financing. In Paducah, Kentucky, the lawless operations of one agency--the Western Area Narcotics Task Force, or WANT--came to light when the discovery of almost $66,000 secreted in its headquarters provoked an official inquiry and major scandal. Among other things, reporters discovered that WANT had promised federal funders that it would produce a 20 percent rise in asset seizures. According to the Paducah police chief's estimate, 60 percent of the money found in WANT headquarters had been improperly seized. Often the seizures had no connection to any drug transaction. One seizure was as small as 93 cents, showing, according to the Paducah Sun, "once again that the officers were taking whatever the suspects were carrying, even though by no stretch could pocket change...be construed to be drug money."

Unfortunately, there are numerous other examples of police agencies targeting assets with no regard for the rights, safety or even lives of the suspects. In one federal civil rights judgment against an Oakland, California, drug task force, we read an officer's admission that his unit operated "more or less like a wolfpack," driving up in police vehicles and taking "anything and everything we saw on the street corner." In Louisiana, police illegally stopped and searched massive numbers of drivers, seizing money that was then diverted to police department ski trips and other unauthorized uses. In Los Angeles, a Sheriff's Department employee revealed that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures. Recent investigations in Florida, New Jersey, Philadelphia, Boston and Washington State have exposed similar lawlessness by police in search of forfeitable cash.

Then there is the appalling case of Donald Scott, a 61-year-old wealthy California recluse. Scott lived on a $5 million, 200-acre ranch in Malibu adjacent to a large recreational area maintained by the National Park Service. Tragically for him, in 1992 the Los Angeles County Sheriff's Department received a false report that Scott was growing several thousand marijuana plants on his land. It assembled a team--including agents from the Los Angeles Police Department, the Park Service, the D.E.A., the Forest Service, the California National Guard and the California Bureau of Narcotic Enforcement--to investigate the tip, largely through the use of air and ground surveillance missions. Despite several unsuccessful efforts to corroborate the informant's claim, and despite advice that Scott posed little threat of violence, the L.A. Sheriff's Department dispatched a multi-jurisdictional team to conduct a military-style raid. On October 2, 1992, at 8:30 a.m., thirty officers descended upon the Scott ranch with high-powered weapons, flak jackets, dogs, a battering ram and what purported to be a lawful search warrant. After knocking and announcing their presence, they kicked in the door and rushed through the house. There they saw Scott, armed with a gun in response to his wife's screams. With Scott's wife watching in horror, agents fired two bullets into Scott's chest and killed him. They found no marijuana plants, other drugs or paraphernalia anywhere.

Following Scott's death, the Ventura County District Attorney's office conducted a five-month investigation of the raid. The seventy-page report found that there was no credible evidence of present or past marijuana cultivation on Donald Scott's property. It found that the Los Angeles County Sheriff's Department knowingly sought the search warrant on legally insufficient information, and that much of the information supporting the warrant was false while exculpatory evidence was withheld from the judge. The report concluded that the search warrant "became Donald Scott's death warrant," and that Scott was needlessly killed.

The targeting of Donald Scott, and the massive multi-jurisdictional police presence, cannot be explained as any kind of crime control strategy. Rather, as the District Attorney's report concluded, one purpose of this operation was to garner the proceeds expected from forfeiture of the $5 million ranch. The investigation found that as they invaded the property, the officers--with two asset forfeiture specialists in tow--were armed with a property appraisal of Scott's ranch, a parcel map of the ranch marked with the sale price of a nearby property and instructions to seize the ranch if at least fourteen marijuana plants were found.

Scott's case and the others should prompt reform, and indeed major reforms are called for by a broad-based coalition including the American Civil Liberties Union and the Cato Institute. But thus far the forfeiture industry has enjoyed an astonishing immunity to scrutiny by lawmakers. Even the Hyde forfeiture reform bill, which would institute some significant procedural reforms, would not redirect the stream of assets flowing into the police agencies that seize them. Representative Hyde did not seek to curtail forfeiture's financial rewards, he says, largely because of the continued, vigorous opposition of law-enforcement agencies. But unless Congress wants to abandon any hope of regaining control over the drug war bureaucracy it has created, it had better try to do so sooner rather than later.

The solution is not hard to envision: A law mandating that forfeited assets be deposited in the Treasury's general fund, rather than retained by the seizing agency, would cure the forfeiture law of its most corrupting effects. This single measure would restore budgetary oversight to law enforcement and remove the incentive that leads police agencies to distort their agendas for budgetary reasons. A less sweeping reform, but important nonetheless, would repeal the law that permits local police forces to evade their state laws by "federalizing" their forfeitures.

Reformers might also challenge forfeiture rewards in the courts. Although the Supreme Court has not placed many meaningful limits on the government's forfeiture powers, the logic of some past decisions unrelated to forfeiture supports a strong argument that self-financing law-enforcement agencies are constitutionally objectionable on both conflict-of-interest and separation-of-powers grounds. A more fundamental fact is that the Constitution was born in part to eliminate such institutions. Financial incentives promoting police lawlessness and selective enforcement, in the form of writs of assistance authorizing customs officers to seize suspected contraband and retain a share of proceeds, were high on the list of grievances that triggered the American Revolution. For the colonists, the writs were an outrage that brought with them corrupt officials, lawless seizures, selective enforcement and fabricated evidence. From these complaints, John Adams later said, "The child Independence was born." The same fundamental grievances are now lodged against our present forfeiture law. When they reach the Supreme Court, the Justices will be forced to choose between redressing them and reading the Framers' concerns out of the Constitution.

The distribution of drug war dividends to law enforcement is but one part of an antidrug mobilization that has continued, at escalating levels, for almost thirty years. Despite a succession of failures to "win" the war on drugs, the government's response has always been simply more of the same--more money thrown into this war (now $50 billion per year in federal and state budgets), more arrests (now about 500,000 per year for marijuana possession alone) and more prisoners (60 percent of federal prisoners are incarcerated for drug offenses). This heavy law-enforcement emphasis has never flagged, and cases like Mary Miller's and Donald Scott's help explain why: Police and prosecutorial agencies that make drug-law enforcement their highest priority are extravagantly rewarded for doing so by the forfeiture laws. For law-enforcement officials, however irrational the drug war may be as public policy, it remains superbly rational as a bureaucratic strategy.

Eric Blumenson is a professor at Suffolk University Law School. Eva Nilsen is an associate clinical professor at Boston University School of Law. The authors' research was supported by a grant from the Open Society Institute's Individual Project Fellowships Program, and is reported in full in "Policing for Profit: The Drug War's Hidden Economic Agenda," in the University of Chicago Law Review (Vol. 65, Winter 1998). Further assistance was provided by the Abe and Flora Shafer Fund of The Nation Institute.

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