Civil Asset Forfeiture: Policing for Profit.

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Law Enforcement Against Prohibition (LEAP), a group of criminal justice professionals opposed to the war on drugs (of which I am a board member), has long held the position that civil asset forfeiture (CAF) skews law enforcement priorities by monetizing police work.  The nexus between the drug war and the subversion of American civil liberties has been documented widely since the start of our drug war.  CAF encourages California law enforcement agencies to subvert our own state laws, which should require clear and convincing evidence linking real property to criminality prior to being seized. 

The best example of the monetizing of law enforcement was displayed by Anaheim police officials when they attempted an end run around state law over the purchase of $37, or 4 grams worth of medical marijuana by an undercover Anaheim police officer at a $1.5 million office building owned free and clear by landlord Tony Jalali. The history of Jalali’s “David versus Goliath” fight can be read in Vern’s unforgettable story here, and subsequently with the help of the Institution of Justice not just Tony Jalali but all Americans won who are working to upend this unjust law which allows the police to take your property, sell it and keep the proceeds – even if you have done nothing wrong.

Criminal justice and drug policy reform are inextricably linked.  We continue to see changes that include sweeping reforms such as the passage of Proposition 47 as well as incremental changes that are stepping-stones to ending our failed drug war.  Recently Attorney General Holder announced a policy directive that limits the adoption of state cases under the Federal Equitable Sharing Program.

But even under this policy directive there are significant limitations and loopholes any law enforcement agency could drive a Mack truck through.  In a recent article by the OC Register Watchdog it is pointed out that the California Police Chiefs Association and specifically Orange County law Enforcement has developed an over-reliance on a program that was designed to supplement budgets, not supplant them. In a rare moment of candor, law enforcement officials admitted to what the loss means to them:

“Local police are scrambling to fill the financial hole left in their drug-fighting resources by U.S. Attorney General Eric Holder’s decision to stop allowing them to take cash and property from suspected dealers without warrants or convictions.”

The article points to one of the reasons that many civil libertarians surmise that the Jalali property (worth $1.5 million) was targeted by the City of Anaheim as the Anaheim Police Department was described as the “most prolific user” collecting $5.3 million of drug money in 2013 alone. This money accounted for 4.5 percent of the total police total budget.  Yet the Register article continues to point out the intransigence of law enforcement who fail to see how policing for profit has sullied the reputation of our profession.   The President of the Orange County Deputy Sheriff Association, rather than looking at how to reform a policy that has been proven to violate American civil liberties, instead feels insulted:

“It is disappointing that the highest ranking law enforcement official in the country would imply that America’s police officers are conducting themselves in a way that is no better than the common criminal.”

The Drug War has in fact turned American policing on its head and has created an infrastructure that many Americans feel is corrupt.  Drug market enforcement and civil asset forfeiture has created a system suffering a rise in systemic personal and governmental corruption.  One simply needs to google “drug war corruption” to get thousands of stories that shows how our fight for a drug-free America has help to polarize our nation.

Yet I also believe, happily, that there is change in the air.  There is now a growing bipartisan effort to change many aspects of our criminal justice system which includes partnerships by Senator Rand Paul with leading members of both parties to reform civil asset forfeiture further.  Paul recently re-introduced S. 255, the FAIR (Fifth Amendment Integrity Restoration) Act while at the same time Representative Tim Walberg (R-MI) is the lead sponsor of the FAIR Act in the House of Representatives. This legislation will protect the rights of property owners and restore the Fifth Amendment’s role in property proceedings. The announcement of this legislation provides welcome news as recent policy changes by Eric Holder are not statutory in nature, and also only address 14% of the total amount of seizures in question.

LEAP has been working on this issue and welcomes the policy shift by Holder and support Paul’s and Walberg’s legislation.  In our press release Executive Director, Major Neill Franklin reflected:

“The FAIR Act is precisely what we’ve been advocating since Holder’s announcement, If this bill passes, it would topple a huge cornerstone of the drug war infrastructure that erodes community trust in police, promotes corruption within the ranks and distracts cops from doing their jobs. Once this incentive is gone, cops can spend their time protecting communities from truly dangerous criminals instead of taking money from innocent people.”

Thomas Jefferson once stated, “the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interest of the governed, not the governors.”  Clearly “policing for profit” is an issue of governance.  To ignore the call for reform by not just legislators, but public policy interest groups and the public, undermines the public trust.  The system of civil asset forfeiture benefits an over-reaching government bent not on protecting American civil liberties, but its own financial interests.  By ignoring the underlying issues surrounding its abuses we further damage the relationship between law enforcement and our constituents by discounting our communities’ concerns.

And, though I believe that criminal forfeiture CAN be a legitimate tool in fighting crime, that tool should only be used based on a criminal conviction and not a spurious connection to drugs or criminality.