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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