February 8th, 2016
As a board member for Law Enforcement Against Prohibition, a group of criminal justice professionals opposed to the War on Drugs, and a 20-year veteran of California law enforcement, I am all too aware of the inevitable outcomes of our failed drug strategy.
For one thing, the emphasis on drug enforcement has diverted critical resources from the investigation of actual crime. Since the advent of the drug war we have seen crime clearance rates drop precipitously. For example, according to the FBI Uniform Crime Report, law enforcement solved just 13.6 percent of all reported burglaries in 2014. Back in 1960, the equivalent figure stood at 30 percent—and it has declined in every decade since.
Another, more insidious factor is the way in which our government manipulates state and local law enforcement policing strategies through a system of fiscal incentives, including categorical and block grants which can only be used for defined purposes that meet federal policy goals.
Yet no single policy undermines justice and distorts the mission of law enforcement more egregiously than civil asset forfeiture.
Birthed during the 1980s as a crime-fighting tool designed to strip financial assets from drug-trafficking organizations, federal civil asset forfeiture (unlike criminal forfeiture) permits law enforcement agencies to seize property from individuals without having to charge or convict them of a crime. Think about that for a moment.
The federal “Equitable Sharing Program” enabled state and local law enforcement agencies to subvert state forfeiture laws that previously required either criminal convictions or a higher burden of proof in order for assets linked to criminal activity to be seized.
Last November the Washington Post ran an article with the headline, “Law enforcement took more stuff from people then burglars did last year.” Analyzing the data, it confirmed that “…in 2014 more cash and property transferred hands via federal civil asset forfeiture than via burglary.” This staggering fact condemns a law enforcement practice that resembles highway robbery more than a strategy designed to enhance public safety.
In addition to the essential injustice involved, law enforcement agencies are incentivized to pursue seizures, creating a blatant and corrupting conflict of interests. The federal Equitable Sharing Program allows up to 80 percent of the value of seized assets to be returned to the law enforcement agency that seized them. So law enforcement agencies can financially reward themselves for bad policing.
There is no presumption of innocence for the property owner, turning our system of justice on its head. In a criminal court, you are also guaranteed rights such as a right to counsel, for example. But civil asset forfeiture denies such essential protections.
The practice also has a disproportionate impact on poor and marginalized people. A report on California forfeiture practices published by the Drug Policy Alliance found that the average seizure in 2013 was $8,542—hardly the drug kingpin money touted by law enforcement.
Between 1997 and 2013, 87% of Department of Justice seizures were from civil forfeiture and just 13% were criminal in nature, according to the Institution for Justice. This means that only 13% of people whose property was seized by law enforcement during this time were ever charged with a crime.
The Institute for Justice concluded that the federal Equitable Sharing Program made it possible for agencies to circumvent more stringent state laws by working with multi-jurisdictional task forces, including federal agencies such as the Drug Enforcement Administration.
Predictably, given the temptations this program dangles in front of law enforcement officers, there have been many examples of federal, state and local agencies monetizing criminal investigations.
One notorious case involved the seizure in December 2011 of an office building worth $1.5 million by the City of Anaheim and the DEA—over a $37 medical marijuana transaction.
The owner of the building leased the property to a clinic that they believed to be operating within state law. The property owners were never charged with nor convicted of any state or federal crime. While the federal government and the city were eventually forced to give the property back, this case highlighted the lack of adequate procedural safeguards to protect innocent property owners under the Equitable Sharing Program.
The latest scandal comes from Florida, where a two-city, 12-man narcotics task force laundered $71.5 million for drug-trafficking cartels—more than twice the amount it reported taking off the streets. This operation resulted in no local arrests, but it did create a slush fund unencumbered by any legislative oversight. According to a 2015 Miami Herald investigation, when the Glades County Sheriff’s Department joined the task force, other members of the organization were elated by “a chance to bring in more revenue.”
Items purchased by members of the narcotics task force with this “revenue” included first-class plane tickets, thousand-dollar dinners, five-star hotel stays and submachine guns. In addition, monies were also used to supplant the law enforcement budget to pay for salaries, in violation of federal guidelines.
These are just two examples of the many abuses of a program that possesses an inherent ability to corrupt law enforcement and prosecutors by giving them a budgetary stake in forfeited property, while victimizing many innocent members of the public.
Even John Yoder, the original architect of the federal Equitable Sharing Program, has stated that policing for profit “has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.”
Many of us working to reform this practice recognize that criminal forfeiture can meet legitimate public safety objectives. Yet the War on Drugs continues to be used to justify the seizure of assets without constitutional due process and protections.
“Policing for profit” will not disappear overnight, but we can hope for better.
In the last several years there has been a growing bipartisan consensus, as well as media focus, recognizing the damage caused by the federal Equitable Sharing Program. And state-level reforms, such as those achieved in New Mexico, Michigan and Minnesota, have introduced greater accountability and eliminated some conflicts of interest, by stipulating, for example, that any assets seized should go into central state or education funds.
Federal legislative reforms were introduced last year by a strong bipartisan congressional coalition, widely supported by diverse organizations such as the ACLU and the Heritage Foundation. The Fifth Amendment Integrity Restoration (FAIR) Act was introduced by Senator Rand Paul (S255), with companion legislation by Representative Tim Walhberg (HR540), seeking to end the perverse incentives created by this program. Today HR540 has 90 bipartisan co-sponsors, all of whom support an end to civil asset forfeiture as we know it.
Yet both bills are currently languishing in their respective judiciary committees, with opposition from the “criminal justice” lobby holding the hearings hostage. As I have often written, the self-entrenched lobbying practices of law enforcement interests create barriers to any criminal justice reform. And this lobbying contributes to perceptions of a law enforcement system that is neither accountable to legislative oversight, nor to the people it is sworn to serve.
I can only agree with the Institution for Justice when they posit:
“The best solution would be to simply abolish civil forfeiture. Short of that, lawmakers should eliminate financial incentives to take property, bolster property rights and due process protections, and demand transparency for forfeiture activity and spending. No one should lose property without being convicted of a crime, and law enforcement agencies should not profit from taking people’s property.”
Quite simply, the only people who continue to benefit from civil asset forfeiture and the War on Drugs in general are the cops and the crooks—both battling to ensure the profitability of their organizations.
Lieutenant Commander Diane Goldstein (Ret.) is a board member of Law Enforcement Against Prohibition, a group of law enforcement officials opposed to the war on drugs. You can follow her on Twitter: @