14 Federal Stentencing
Reporter No. 2, p. 76 (Sept./Oct. 2001)
THE NEXT STAGE OF FORFEITURE REFORM
Eric D. Blumenson & Eva
Nilsen*
[Since September 4, 2002, this web page has had this many
visitors. -- Posted on September 4, 2002 by Leon Felkins]
In passing the Civil
Asset Forfeiture Reform Act of 2000, Congress instituted some badly needed
reforms to a system that had spawned a good deal of governmental abuse, media
investigation, and popular outrage.
Unfortunately, however, CAFRA does not address the aspect of asset
forfeiture law that is perhaps most responsible for fueling overzealous,
sometimes lawless use of the forfeiture power: federal forfeiture law continues
to authorize law enforcement agencies to retain the drug-related assets they
seize for their own use, and many state laws do as well.[1] Indeed, even when a state’s law earmarks
forfeited assets to education or other non-law enforcement purposes, federal
law allows a local police force to “federalize” a seizure and receive back 80%
of the assets for its own budget.[2] Under this arrangement, some local police
forces have managed to double or triple their appropriated budgets through
forfeitures.[3] With facilities, cruisers, computer and
other equipment, salaries and positions sometimes dependent on how much money
can be generated by their own seizures, police and prosecution agencies still
routinely operate under a conflict between their economic self-interest and
traditional law enforcement objectives.[4] Freeing law enforcement of this conflict of
interest is the next stage of forfeiture reform.
Three years ago we reported in detail
on the constitutional and policy problems inherent in this forfeiture reward
scheme.[5] We questioned the constitutionality of this
arrangement on two grounds: first, because the prosecutorial conflict of
interest is substantial enough to abridge due process; and second, because
providing executive agencies with the power to finance themselves in whatever
amount they can seize violates the Appropriations Clause and the separation of
powers it was designed to protect (or, regarding state forfeitures, analogous
state constitutional provisions). We also argued that the forfeiture incentive
is extremely bad public policy, documenting numerous cases in which federal,
state, and local law enforcement agencies had promoted the targeting of assets
at the expense of effective crime control and evenhanded justice. Since that
time, these problems have drawn the attention and increasing concern of
legislators and voters on many fronts.
In November, 2000, voters in Oregon and Utah approved referenda that
terminated the forfeiture incentive system in those states. By large margins,
these voters redirected forfeited assets to drug treatment and public education
respectively, and also prohibited law enforcement from turning over seized
assets for federal adoption if this would alter the disposition of the assets.[6] Similar laws were enacted in Arkansas and
Missouri,[7]
were approved by the California legislature but vetoed by its Governor,[8] and have been introduced in
the legislatures of Kansas, Massachusetts, New Mexico, New York and other states. A recent Second Circuit Court of Appeals
decision suggests that because the “corrupting incentives” of the asset
retention arrangement “evidently require a more-than-human judgment and
restraint,” Congress should follow up CAFRA by repealing the asset retention
provision.[9]
One avenue to reform that is
only now beginning to be utilized is litigation. One federal decision has
already expressed “grave concern about the constitutionality” of such incentive
schemes,[10]
a view echoed by David Smith, the former Associate Director of the Department
of Justice’s Asset Forfeiture Office, in his forfeiture treatise.[11] Smith adds that it is “remarkable that these
statutes have not yet been challenged on due process grounds.”[12] As we write, however, a suit directly
challenging New Jersey’s forfeiture reward scheme directly on due process
grounds is working its way through the state courts,[13]
and we expect more to come.
In this article, we describe
various routes to this next stage of forfeiture reform – a stage we believe to
be essential to restore integrity to drug law enforcement and fairness to the
administration of justice. We first
identify several situations in which litigation might bear fruit, and detail
both due process and other constitutional objections to forfeiture in those
cases.[14] We then turn to the legislative route, with particular emphasis
on state reforms that would not only
eliminate the conflict of interest that exists under some state statutes, but
also foreclose local police from evading their state’s distribution formula
through federal adoption.
I. Reform through
Constitutional Litigation
A.
The Due Process Objection
When substantial, police and
prosecutorial conflicts of interest may violate the Due Process Clause -- and
as shall demonstrate, such conflicts are
substantial in a great many forfeiture cases.
We believe that the conflict of interest objection is appropriate not
only in civil forfeiture cases themselves, but in any case in which the
government's actions may have been influenced by the potential to fund itself
through forfeiture. For example, in a
criminal drug prosecution, counsel should consider a motion to dismiss when a
wealthy defendant was singled out for prosecution because he possessed
forfeitable assets; but a motion to dismiss may be equally sound on behalf of a
poor defendant who was not offered as lenient a plea bargain as equally
culpable co-defendants who were able to trade their assets for time. In both of
these contexts, the defendant has suffered actual prejudice because of the
government’s conflict of interest. The
government’s conflict may also provide the basis for a motion to disqualify a
prosecutor whose salary is in part dependent on forfeitures -- as in Eastern
Massachusetts, where an investigation disclosed that 12% of the district
attorneys’ budgets were financed through forfeitures they obtained.[15]
What constitutional guidance
exists is found primarily in Marshall v.
Jerrico, 446 U.S. 238, 242 (1980).
The Supreme Court had already held that the Constitutional due process
guarantee includes the right to an impartial tribunal in both civil and
criminal cases.[16] Jerrico
addressed the due process limitations on prosecutorial conflicts.
While declining to apply the stringent impartiality standard required of
adjudicatory officials to prosecuting officials, the Court indicated that at
some level a prosecutor’s conflict of interest will violate the
Constitution.
Jerrico upheld a section of the Fair Labor Standards Act that allowed a
division of the Labor Department to retain the civil penalties it assessed for
child labor violations, as compensation for the costs of determining violations
and assessing penalties. Distinguishing
the conflict of interest prohibitions governing a fact finder, who must be and
appear impartial, from the less stringent limitations on law enforcement
officials, the court held that prosecutors "need not be entirely neutral
and detached. In an adversary system, they are necessarily permitted to be
zealous in their enforcement of the law."[17] But this was far from a blank check for prosecutorial
self-aggrandizement, because the Court simultaneously emphasized that
prosecutors too are bound by at least some due process limitations on conflicts
of interest:
We do not suggest...that the
Due Process Clause imposes no limits on the partisanship of administrative
prosecutors. Prosecutors are also
public officials; they too must serve the public interest. In appropriate
circumstances the Court has made clear that traditions of prosecutorial discretion
do not immunize from judicial scrutiny cases in which the enforcement decisions
of an administrator were motivated by improper factors or were otherwise
contrary to law. Moreover, the decision to enforce — or not to enforce — may
itself result in significant burdens on a defendant or a statutory beneficiary,
even if he is ultimately vindicated in an adjudication. A scheme injecting a
personal interest, financial or otherwise, into the enforcement process may
bring irrelevant or impermissible factors into the prosecutorial decision and
in some contexts raise serious constitutional questions.[18]
In Jerrico the Court found that the constitutional barrier had not
been crossed because the institutional benefit to the prosecuting department
(the Employment Standards Administration) was too small to be a factor in
decisions regarding whom to prosecute and how much to fine. The Court examined three relevant factors —
the degree of institutional financial dependence on the prosecutorial decision,
the official's personal stake, and the penalty distribution formula — and none
of them suggested any temptation towards impropriety. But in the forfeiture situation, each of these three factors cuts
the other way, and to an extreme degree. One could hardly design an incentive
system better calculated to bias law enforcement decisions than the present
forfeiture laws. Taking the Jerrico factors in order:
Financial dependence: In Jerrico the
penalties collected totaled less than 1% of the ESA's budget, and because more
than this amount was returned to the Treasury, they had not increased the ESA's
funding at all. By contrast, numerous
law enforcement agencies now rely on forfeitures to fund a significant part of
their operations. The gross amounts are prodigious: Between 1985 and 1991, the Justice Department collected more than
1.5 billion in illegal assets; in the next five years, the Justice Department
almost doubled this intake, depositing $2.7 billion in its Asset Forfeiture
Fund.[19] In 1999, more than .6 billion dollars were deposited in the
Justice Department’s Asset Forfeiture Fund alone.[20] It appears that this forfeiture income is sometimes required to
operate the Department, which has regularly exhorted its attorneys to make
"every effort" to increase "forfeiture production" so as to
avoid budget shortfalls.[21] Similarly, Justice Department reports have
observed that state and local law enforcement agencies are becoming
increasingly dependent upon equitable sharing of forfeiture proceeds, and that
multijurisdictional drug task forces "expect to have to rely increasingly
on asset forfeitures for future resources.”[22]
After Utah voters closed the forfeiture spigot in the last election,
many drug units there expected downsizing or termination to follow.[23]
Personal interest: Although the Justices found
that the ESA Regional Administrators had no personal stake in the penalties
they assessed, they did note that constitutional violations might have arisen
had the arrangement injected a personal stake into the prosecutor's
decisions. The revised forfeiture laws
do create such a stake: when a police department is allowed to rely on
forfeiture income to supplement its allocated budget, its officer's choice of
who and what to target may mean the difference between a paycheck and a pink
slip. Indeed, in some departments, police salaries are paid directly from asset
forfeiture funds, so long as the funds supplement rather than supplant budgeted
positions.[24]
The funding formula: Finally, in Jerrico the court stressed that the statutory
scheme reimbursed regional offices according to their expenses rather than
their collections, providing no reason for regional offices to seek
unreasonably large penalties. No such
restraint exists in the asset retention statutes; the larger the seizure, the
higher the reward each participating office receives.
The above three factors were
singled out by the Supreme Court as indicia
of whether police or prosecutors were affected by their financial stake in
the case. But in many forfeiture-inspired
cases, counsel will have direct evidence that decision-making was corrupted in
ways that violate the due process guarantee enunciated in Jerrico. In the following
types of cases, a defendant may have suffered legally cognizable prejudice --
i.e. the defendant would not have been targeted, or treated as harshly, in the
absence of the agency’s financial interest:
1. Selective prosecution of asset-rich defendants: Did the police
force select its targets according to the funding they could provide, rather than
the threat they posed to the community?
A Justice Department-commissioned report proposed the former approach to
multijurisdictional task force commanders, suggesting that as asset seizures
become more 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."[25] In one of the worst examples of targeting
assets, Donald Scott was killed in 1992 by a multijurisdictional team that
invaded his property, looking (in vain) for drugs and (according to the Ventura
County District Attorney’s investigation) for a chance to forfeit his
multi-million dollar ranch.[26]
A similar motivation may
have prompted the tactics used in the mid-1980’s by both the New York City and
Washington, D. C. police. Invoking 21
USC § 881(a)(4), police instituted a practice of seizing the cash and cars of
persons coming into the city to buy drugs.[27] The consequence of this strategy was that
the drugs that would have been purchased continued to circulate freely. Patrick Murphy, formerly the Police
Commissioner of New York City, described a similar strategy in Florida in
testimony to Congress, noting that police had
a financial incentive to impose 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 dept., while seized drugs can only be destroyed.[28]
For prosecutors too, funding exigencies have pre-empted
other considerations. One Department of
Justice manual governing racketeering prosecutions, for example, suggests that
prosecution may be contingent on the presence of forfeitable assets, rather
than forfeiture being an incident of prosecution.[29]
2. Drug buyers who have been victims of a "reverse sting". In a reverse sting, police pose as dealers
and sell drugs to an unwitting buyer.
Although buyers are ordinarily both less culpable and less dangerous
than dealers, targeting the former rather than the latter has been justified as
a community-protective, racially neutral way to shut down inner city drug
markets, since buyers often come from the suburbs and are thus more
geographically and racially diverse than sellers in such markets.[30] However, it may be that the real attraction of the reverse sting,
and the one accounting for its mushrooming use, is that it allows police to
seize a buyer's cash -- rather than a seller's drugs, which have no legal value
to the seizing agency. This is the
observation of J. Mitchell Miller, who while a graduate student in the South
worked as a police officer and participated in some reverse stings. He says that the reverse sting, "was
preferred by every agency and department with which I was associated because it
allowed agents to gauge potential profit before investing a great deal of time
and effort. . . . [Reverse stings]
occurred so regularly that the term reverse
became synonymous with the word deal."[31] Whether the suspects were engaged in major or trivial drug
activity, and whether the strategy actually placed more drugs on the street,
were of little if any importance.
3. Disparate plea offers or sentences: Forfeiture laws promote unfair,
disparate sentences by providing an avenue for affluent drug
"kingpins" to buy their freedom. Although wealthy
defendants may be targeted in the investigatory stage, in the plea bargaining
context the ultimate losers are the defendants without assets to trade for
time. The harsher treatment they
receive is a direct result of the prosecutor’s conflicting financial interest,
and thus should be cognizable under the due process clause.[32] As one California court has noted, “a scheme
that provides monetary rewards to a prosecutorial office might carry the
potential impermissibly to skew a prosecutor’s exercise of the charging and
plea bargaining functions.”[33] That this has come to pass has been
documented by investigations in several jurisdictions showing that criminal
defendants with significant assets to forfeit routinely serve shorter prison
sentences and sometimes no prison sentence at all.[34] In New Jersey, for example, a defendant
facing a “drug kingpin” indictment (twenty-five years to life) obtained a dismissal
of that charge and parole eligibility in five years on a lesser conviction, by
agreeing to forfeit over $1 million in assets.[35]
In Massachusetts, where as noted 12% of prosecutorial budgets are
financed by forfeitures, a recent investigation by journalists found that on
average a “payment of $50,000 in drug profits won a 6.3 year reduction in a
sentence for dealers,”[36] while agreements to forfeit $10,000
or more bought elimination or reduction of trafficking charges in almost
three-fourths of such cases.[37]
And the Supreme Court has facilitated this practice by finding no right
to a judicial inquiry as to whether property relinquished pursuant to a guilty
plea is properly subject to forfeiture.[38] As Justice Stevens noted in dissent, “it is
not unthinkable that a wealthy defendant might bargain for a light sentence by
voluntarily ‘forfeiting’ property to which the Government had no statutory
entitlement.”[39] But these distorted, disparate plea offers
remain untested under the due process right to an impartial prosecutor, and the
most hopeful challenge may come from the asset-poor defendants who suffer the
most in plea bargaining from the
government’s conflict of interest.
Will any of the
above due process challenges bear fruit?
Although the Supreme Court has rejected most forfeiture law reform
challenges, the Court has recognized
that forfeiture "can be devastating when used unjustly,”[40]
and that "it makes sense to scrutinize governmental action more closely
when the state stands to benefit."[41] Some of the justices are also committed to
strengthening property rights, or restricting legislative delegations to the
executive -- legal values entirely at odds with the present forfeiture
laws. Most fundamentally, for a court
to sidestep this issue would betray one of the central concerns that led to the
founding of our constitutional order.
Financial incentives promoting police lawlessness and selective
enforcement, in the form of the customs writs of assistance, were high on the
list of grievances that triggered the American Revolution.[42] Writs of assistance authorized customs officers to seize
suspected contraband, and retain a share of the proceeds, often a third, for
themselves and their informants. From
the viewpoint of the Crown, this incentive could help insure that goods landing
in American ports were taxed or, if prohibited, confiscated. But for the colonists, it was an outrage
that brought with it corrupt officials, lawless seizures, selective
enforcement, fabricated evidence, and extortionate agreements from subjects who
had no effective legal recourse. From
these complaints, John Adams said, "the child Independence was born."[43] The same fundamental grievances are now
lodged against our present forfeiture laws.
What court can read such formative concerns out of the Constitution?
B. The Separation of Powers Objection
Agencies that can finance
themselves through asset seizures need not justify their activities through any
regular budgetary process. As a Justice Department report notes, "one 'big
bust' can provide a task force with the resources to become financially
independent. Once financially independent, a task force can choose to operate
without Federal or state assistance."[44] This situation should be found to violate
not only a defendant's due process rights, but also the constitution's
Appropriations Clause and the separation of powers framework that the clause
was designed to support, as follows.
Under Art. I, sec. 9, cl. 7,
Congress is vested with exclusive appropriations power. Along with supporting
statutes, the Appropriations Clause assures that government income cannot be
spent until a specific congressional appropriation releases it.[45] By contrast, under 28 U.S.C. § 881(e)(2)(B) money seized by a
federal agency is deposited in the Department of Justice's Asset Forfeiture
Fund, where it is then available to the Department and other federal agencies
for drug law enforcement and, in some cases, funding prisons. This arrangement bypasses the Treasury,
leaving the Justice Department free to determine the contours of its own
budget. The Justice Department, the DEA
and other federal law enforcement agencies have essentially been given the
freedom to fund themselves in whatever amount their agents can legally
seize. The constitutional questions are
whether this kind of blank check comports with section 9 and, more broadly, the
constitutional scheme of separate powers that serve to check and balance each
other.
The complication is that
this blank check was issued by Congress, and in theory it can terminate the
privilege at any time. This generates
two alternative possible interpretations: sec. 881 might be deemed either an exercise of the congressional
appropriations power, or it might be considered an unconstitutional transfer of this power to the executive
branch. Obviously executive agencies
must exercise legislatively delegated power, but just as obviously there must
be limits of degree or the organizing principle of the constitutional
structure, the separation of powers, could be lawfully destroyed. In theory the non-delegation doctrine is
designed to discern this limit. After a
long period of decline, the non-delegation doctrine has been showing new signs
of life.[46]
If some delegations of
legislative power are constitutionally suspect, giving law enforcement agencies
the opportunity to set the size of their own budgets through police seizures
must be one of them. By issuing this
blank check Congress has alienated the vital legislative function assigned to
it by the Appropriations Clause: specifying the size and nature of the
government's activities. This is
precisely what Congress did not do
when it enabled law enforcement agencies to fund themselves with whatever
assets they might lawfully seize. A law
enforcement agency can now decide for itself what its size and resources will
be, unconstrained by any legislative determination of an appropriate budgetary
level. This wholly thwarts sec. 9's
constitutional function as defined by the Supreme Court, which is "to
assure that public funds will be spent according to the letter of the difficult
judgments reached by Congress as to the common good and not according to the
individual favor of Government agents..."[47]
The prospect of a
self-financing law enforcement branch, largely able to set its own agenda and
accountable to no one, is a development wholly incompatible with democratic
institutions. It presents the kind of
dangers one of the framers, George Mason, must have had in mind when he warned
that "the purse and the sword ought never to get into the same hands,
whether legislative or executive."
C.
Other Court Challenges
We merely note here some other constitutional questions raised by the
forfeiture reward scheme. A recent U.S.
District Court opinion conveys “grave
concerns” about the cash incentives for customs inspectors, stating that “it
appears to the court that the
very existence of this program may very well run afoul of the Fourth
Amendment. Specifically, such a
program creates perverse law enforcement incentives that have an unduly
dangerous propensity to encourage unreasonable searches and detentions.”[48] Regardless of how small the rewards are, the Court found it “unacceptable for the government to provide its
officers with such incentives [because] the risks of
over-zealous and biased law enforcement are simply too great.”[49] Moreover, because this incentive encourages
seizures wholly disproportionate to any wrongdoing on the part of the owner,
recent Supreme Court cases holding the 8th Amendment’s excessive
fines clause applicable to civil and criminal forfeitures may provide
additional recourse to an aggrieved claimant.[50]
As forfeiture law and
constitutional doctrine continue to develop, additional possible challenges may
be grounded in the ethical constraints that govern prosecutors or doctrinal
limitations on “outrageous governmental conduct”; or in the Supreme Court’s
emerging doctrines designed to protect states’ rights against national
power. Given the Supreme Court’s
rapidly increasing interest in the latter issue,[51]
there may come a time when the adoptive forfeiture law -- which permits local
police departments to combine with the federal government in order to
circumvent their own state forfeiture laws -- is ripe for effective challenge
on federalism grounds.
Finally, the past year has
seen the initiation of several class action suits seeking return of assets that
were transferred to the U.S. Department of Justice for adoption, in defiance of
state statutes that require a court order allowing such adoptions.[52] Because such statutes exist in 35 states but
have been generally ignored by local police and the Justice Department, such
suits could play a significant role in preventing adoptions and restoring a
state’s ability to earmark forfeited assets for non-law enforcement uses.
II. Reform via
Legislation and Voter Initiatives
1.
Federal Legislation
CAFRA’s laudable reforms do
not include any measures to rectify equitable sharing and other asset
distribution provisions or the conflict of interest and accountability problems
that result. Few are predicting that
Congress will enact such reforms with dispatch. Former House Judiciary Committee Chair Henry Hyde did not include
asset allocation reform in his annual reform efforts despite its importance
because, he said, "the financial considerations involved in the present
federal adoption system mean unyielding opposition from law enforcement
officials at all levels to any change in the law...."[53] Nevertheless, as voters and legislators at
the state level demonstrate the potency of this issue, and as a growing number
of judges, commentators, and politicians demand change,[54]
the reform movement in Congress is also likely to gain strength. In his
campaign, President Bush pledged to create a task force that would, among many
tasks, investigate the need for additional forfeiture reform.[55]
The most obvious federal
reform, and one that would cure both the conflict of interest and
accountability hazards of the present system, would require forfeited assets to
be deposited into the Treasury's general fund.
This one measure would restore congressional budgetary oversight, and
remove the incentive for police departments to distort their agendas for
budgetary reasons.[56] If Congress cannot or will not enact this
fundamental reform, there are lesser but crucial steps it might take to
ameliorate the particularly destructive impact of the adoption procedure, which
allows local police to “federalize” a forfeiture and receive back 80% of the
assets, more than their own state laws might provide. Adoption serves to provide police with a means of manipulative
forum shopping without furthering any other, more legitimate purpose. Congress should either (1) repeal the
federal adoption law or (2) amend it to require that money given back to the
states after an adoptive forfeiture be allocated according to state forfeiture
law.
2. State Legislation and
Voter Initiatives
In
the short run, state legislation and voter initiatives may have the best
prospects of substantially reducing the corrupting influence of forfeiture
incentives. As already noted, efforts
are accelerating on both fronts, with significant successes. In states which currently allow law
enforcement agencies to keep the assets they seize, the central component of
reform is to redirect the funds elsewhere, of course. But an additional component is required: no state effort to
eliminate self-dealing by its law enforcement agencies can be successful unless it simultaneously closes the back door of federal adoption, because otherwise police
will simply evade state requirements by federalizing their forfeitures. In Missouri, where the constitution requires
forfeited funds to be used for public schools, the state auditor found that 85
percent of all forfeitures were going through the federal system rather
than the state prior to its 2001 reform law.[57]
To be effective, a
comprehensive state reform bill would address the following issues:
(1) Disposition of
assets. The legislation must
redirect forfeited assets away from the seizing agency or law enforcement
generally. We note that both referenda
organizers and legislators have proposed earmarking forfeited assets to
particular uses, such as public schools, drug treatment, or literacy, no doubt
partly because such uses have much more political appeal than would a law
depositing the assets in the Treasury’s General Fund. The crucial point is that unless the financial rewards for
seizures are entirely eliminated, the risk remains that police agencies and
drug task forces will become increasingly unaccountable, self-financing, and dependent on
prosecuting the drug war for their economic survival.
(2) Circumvention via
federal adoption. The law might take any of several forms: requiring law
enforcement to turn over D.O.J. distributed-funds to the state treasury;
prohibiting the receipt of funds from the Department of Justice; deducting all
funds received back by law enforcement from its budget allotment; prohibiting
law enforcement from federalizing a seizure absent an agreement with the
Department of Justice authorizing distribution of assets returned according to
the state formula; and so on. Each of
these provisions would either eliminate the incentive to federalize a seizure,
or prevent an adoption agreement because current federal law requires
distributed funds to be used for law enforcement purposes only. Many states have also attempted to limit
federal adoptions by requiring a court finding that specific (and sometimes
statutorily enumerated) circumstances warrant transfer.[58] However, police have often flouted this
requirement with impunity. The efficacy
of this or any of the other adoption restrictions above depends on a state
court maintaining control over the forfeited property – something best achieved
by a statute affording in rem jurisdiction over all property seized by state
officers.[59]
Although opponents can be
expected to argue that state restrictions on federalizing seizures are
preempted by federal law,[60]
recent Supreme Court cases concerning federalism seem to doom this argument,
and safeguard the states’ right to decline cooperation with the federal
program.[61] While the reach of these cases is uncertain,
the Court has clearly held that Congress cannot commandeer state officials to
execute federal laws. In Printz v.
United States, the Brady law’s provision requiring state officials conduct background
checks of gun owners was found unconstitutional under the Tenth Amendment,
because the “power of the Federal Government would be augmented immeasurably if
it were able to impress into its service--and at no cost to itself--the police
officers of the 50 States.”[62] Were a court to hold that a state could not
decline to participate in the federal adoption program, it would be putting an
unconstitutional gloss on the adoption law by interpreting it as commandeering
the state executive.[63]
(3)
Reporting requirements. The law should mandate periodic accounting by
police, prosecutors, and the ultimate recipient, of all properties seized,
sold, transferred and forfeited, subject to an annual audit. Records of both the accounting and the audit
should be available to the public.
(4) Sanctions for non-compliance.
We have previously documented the truly remarkable record of governmental
non-compliance with forfeiture requirements,[64]
a disturbing situation that continues to this day.[65] The recent ballot initiatives have included
civil and criminal sanctions for transfers or distributions of funds in
violation of law.[66]
The
ballot efforts in the last year addressed the forfeiture incentive, but also
included other reforms, such as certain due process protections, substituting
treatment for incarceration of low level offenders, tying forfeiture to
conviction, and so on. These important areas have also proved fertile, at least
among voters, and should be pursued.
Now that CAFRA has succeeded at the federal level, many states will
likely follow in instituting similar provisions. We continue to believe, however, that the forfeiture incentive in
particular poses some of the greatest risks, and is already fostering a
dangerous new kind of police agency -- unaccountable, self-financing, and
dependent on prosecuting the drug war for its economic survival. These law enforcement agencies already
constitute a tenacious, powerful lobby against the reforms we have advocated
here. But unless our representatives
want to abandon all hope of regaining control over the Drug War bureaucracy they have created,
they had better pull the plug on self-funded agencies sooner rather than later.