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There is now broad agreement that the War on Drugs is an abject failure. I have two basic premises in making that argument. The first is that the War on Drugs has done little to decrease the use of drugs by Americans, and has in fact sustained high profits for the major trafficking operations and their ability to supply drugs to America.. The second is that the War on Drugs is a misnomer; it is a war on Americans. As agitator Radley Balko notes:

Our police officers have begun to see drug suspects not as American citizens with constitutional rights but as enemy combatants. Pets, bystanders, and innocents caught in the crossfire can be dismissed as regrettable but inevitable collateral damage…

But here is the puzzle, and I’m afraid there is far too little attention coming to this issue. There are numerous communities that have indicated their clear preference for drug legalization, particularly for marijuana. California for instance legalized medical marijuana, and numerous other communities around the country have established lowest priority laws that relegate enforcement of marijuana-related offenses to the lowest law enforcement priority.

But it appears that voter-supported change through ballot initiatives is in many respects futile. Even where voters have clearly spoken, law enforcement efforts remain directed at priority enforcement of marijuana crimes, particularly through the use of SWAT teams and other aggressive, violent enforcement tactics.

The reason why is that law enforcement on all levels has stopped acting like public agencies that offer public services, and more like private companies that seek to bolster their bottom line. Through provisions in state and federal laws, local and state law enforcement can seize and forfeit property (like cash, cars, and houses) with little to no difficulty, including the difficulty associated with obtaining convictions for alleged offenses.

Where the profit motive comes in is that these agencies are able to keep the proceeds of the cash and property they seize from Americans suspected primarily of drug offenses. This money is the key. This money is deeply implicated in the militarization of domestic policing; it pays for re-appropriated military equipment, salaries, and surveillance technologies, among others.

This money is free of civilian oversight and often any kind of real reporting requirements. Where states and localities have legislative appropriations to direct the proceeds of fines or property seizures to general revenue funds (like education or healthcare) these laws are circumvented by the ability of state and local police to keep forfeiture money anyway. They can do this by initiating seizures federally or by transferring seizures made under state laws to federal jurisdiction.

In a nutshell, the game in law enforcement is now not to spend more money solving crimes and protecting Americans. The game for law enforcement is to find more sources of funding. The easiest way for a law enforcement agency to do this is to go after drug suspects, especially low-level marijuana users. Low-level marijuana users rarely, if ever, present any real threat; as a law enforcement officer, you are much more likely to be attacked or injured seriously in responding to a domestic dispute. But it is politically safe to demonize non-violent drug offenders, and it is safe to attack them with overwhelming military force, and it is politically safe to take their money, cars, and houses with little or no real backlash.

The money is the key. A preliminary survey indicates that the agencies that are big and sophisticated enough to engage in large-scale forfeiture operations in coordination with the Department of Justice are also sophisticated enough to realize that it takes money to make money. Hence these are the law enforcement agencies that are most likely to hire lobbyists to protect the laws that make it easy to target Americans who commit drug offenses.

I should repeat that. The money is the key. Without that money, law enforcement agencies would have to rely (gasp!) on legislatively appropriated funds to conduct their operations. In other words, Americans should be able to direct the policies of their law enforcement through their ability to elect legislators who represent them.

Without controlling the torrent of unappropriated forfeiture money that is illegally retained by law enforcement across the country, Americans can’t win any part of the struggle for our rights. We are in the fundamentally awkward position of being told what our priorities are by unelected law enforcement officials who have figured out how to pay their own salaries without tax dollars and how to enforce policies that their citizens do not consent to.

This is why reforming civil asset forfeiture laws are so critically, so vitally important. I argue that no property should be taken from citizens without a trial and a conviction; where the law directs forfeiture money to general revenue funds or other specific uses, those laws should be vigorously enforced; where law enforcement is legally directed to retain and use forfeiture money those funds should come with civilian oversight and robust reporting and audit requirements.

Without these reforms, Americans who vote and choose to set the laws of their cities, states, and nation will find their efforts terminally abrogated. Civil forfeiture laws implicate the very heart of the democratic process. These laws taint the practice of law enforcement and undermine the integrity of those law enforcement officers who use them. These laws incentivize the denial of fundamental human rights to due process of law and to property.

Without reforming civil asset forfeiture laws, we can’t win the war to end the Drug War. Even Sisyphus might have had an easier task.

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