Earlier today, I sent this letter as comment on proposed legislation (AB 639) to end the use of federal “adoption” procedures by California law enforcement that allow the circumvention of billions of dollars of forfeiture money around the forfeiture laws of the 50 states.
In the years since the 1984 Comprehensive Crime Control Act passed Congress, asset forfeiture has emerged as a major source of law enforcement revenue. The original goal of these programs was to take the profit motive out of crime. Unfortunately, the process and mechanism of asset forfeiture has induced systemic corruption into the criminal justice system by shifting the primary incentives facing law enforcement agents from their mission of public safety to revenue generation.
From this perspective, we wholeheartedly endorse any effort to prevent state and local law enforcement from circumventing both a) the state laws concerning the seizure and forfeiture of property and b) state protections on due process and other Constitutional rights afforded to citizens.
The 1984 CCCA allowed the Department of Justice to distribute monies to state and local law enforcement officials, as well as retain all forfeiture funds exclusively in a DOJ-controlled Asset Forfeiture Fund. Prior to this legislation, forfeiture funds were deposited in the general fund controlled by the US Treasury and directly subject to congressional appropriation.
Out of this legislation was crafted the Equitable Sharing program that allows the diversion of billions of dollars a year from the forfeiture funds of the 50 states. In California, state law enforcement used Equitable Sharing to directly retain some $75 million to agency budgets in 2010. Since access to the federal forfeiture pipeline is conditional on adherence to federal law enforcement aims, this allows federal priorities to set the agenda for state and local law enforcement policy and practice, regardless of the will and intent of California citizens.
There is the problem that Equitable Sharing or “adoptive forfeiture” procedures federalize law enforcement. This sounds innocuous, but it has real-life impacts as Californian local governments struggle with fiscal issues. An article in a Wall Street Journal article last July describes this phenomenon, citing instances where law enforcement in several Californian counties divert resources from the enforcement of DWI laws and violent crime toward the prosecution of federal marijuana and narcotics laws, which result in seizeable cash and property as well as federal grant money:
Shasta County Sheriff Tom Bosenko, his budget under pressure in a weak economy, has laid off staff, reduced patrols and even released jail inmates. But there’s one mission on which he’s spending more than in recent years: pot busts.
The reason is simple: If he steps up his pursuit of marijuana growers, his department is eligible for roughly half a million dollars a year in federal anti-drug funding, helping save some jobs. The majority of the funding would have to be used to fight pot. Marijuana may not be the county’s most pressing crime problem, the sheriff says, but “it’s where the money is.”
As California continues to reel under the weight of cuts to state spending, the impacts become more visible as law enforcement starts cutting staff and funding for everything except cannabis law enforcement:
Tight budgets prompted sheriffs’ departments in the state to cut more than 800 positions in the first three months of this year, out of about 30,000. Support for local law enforcement from the strapped state government will fall by $100 million this year, the California Association of Counties expects.
Shasta County supervisors told Sheriff Bosenko last spring that his budget this year would be about $2 million less than last year’s $38 million.
The sheriff laid off 26 people last July, more than 10% of his staff, among them 11 deputies. He eliminated a major-crimes investigator and cut nighttime patrols to two cars from four.
That slowed responses to emergencies, especially after midnight, when an estimated 20% of drivers in the largely rural county 150 miles north of Sacramento have been drinking. The county has higher rates of assault, burglary, drunken driving and domestic violence than big California cities.
To save still more, Mr. Bosenko closed a floor of the county jail and gave early release to 185 inmates, among them 30 convicted drunk drivers. “Those people will probably go out and drink and drive again and hurt people,” the sheriff says. “The criminals know that there’s very limited offender accountability due to our releases at the jail.”
There is a distinct problem with our democratic governance when federal dollars divert local law enforcement from the local public safety needs of citizens. More generally, citizens are vastly overwhelmed by the reality of federal law enforcement powers and the reach of federal law enforcement policy. Consider the new FDA policy of conducting raids on Californian raw dairy co-operatives with the assistance of state and local SWAT teams. In many instances like these, and in the basic day-to-day operation of police in California, federal dollars have incentivized the use of policing tactics that many citizens regard as overly militaristic; yet, because these monies are independently generated and accessed by law enforcement, the ability of citizens to exert any democratic control over these practices is almost completely undermined.
We are happy to see that Californians are represented by legislators who understand the problems inherent in allowing federal agencies access to and control of state law enforcement revenues. Hopefully, the legal structure provided by AB 639 will prove effective. We do fear that the Department of Justice will undermine this state law by crafting additional end-runs around Californian forfeiture procedures, and we urge the Assembly to be vigilant that this does not happen.
We do make one further recommendation to the assembly. Allowing direct retention of forfeiture money is a basic incentive that implicitly shapes the agenda of any prosecutor or police agency that has it. Yet the legislature desires to ensure the funding of public safety services. These two aims can be reconciled. We recommend that the Assembly choose to appropropriate forfeiture funds on a year-by-year basis, in order to retain appropriative control of money that will be spent at the behest of citizens, and allow a flexible approach that comes with an inherent level of civilian and democratic oversight.
 “Strapped Police Run on Fumes, and Federal Pot-Fighting Cash”, Justin Scheck, July 3, 2010, http://online.wsj.com/article/SB10001424052748703648304575212382612331758.html
“Uncowed by the Law”, Katherine Mangu-Ward, November 2010, Reason Magazine, http://reason.com/archives/2010/09/18/uncowed-by-the-law