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There are numerous stories of property seizure, law enforcement misconduct, and victimized Americans that break in the course of a given week. While we try to cover as much as we can through our Facebook page (www.facebook.com/ForfeitureReform) and this blog, it’s a near impossibility with the volume of other work that we do. So instead of commenting on any particular forfeiture story, today I decided to discuss some reasons why I believe asset forfeiture issues implicate fundamental issues of American governance and structure, and why I believe it is necessary to engage in a big-picture reform effort rather than attack these issues piecemeal.

Asset forfeiture and legislative abdication

In 1984, Congress allowed the Department of Justice the ability to directly keep forfeiture revenue to in an Asset Forfeiture Fund (AFF). On the state level, numerous state laws (particularly those created between 1985-present) allow some or the entire portion of forfeiture revenues to be directly retained to law enforcement in some fashion, although this is not universal; some states direct forfeiture funds to education or other enumerated use.

I argue the retention of forfeiture funds by law enforcement allows the circumvention of some basic democratic processes. The core principle here is that all public money should be appropriated by elected lawmakers, and that allowing these decisions to be made by an executive branch agency fundamentally undermines that. Some raise the objection that this can be a democratic process if the agency retaining forfeiture proceeds has to seek legislative authority to use the proceeds to fund specific activities. But this still represents an abdication by legislators of a fundamental democratic duty: the duty to assess all public needs through the appropriation process, where the competition between competing interests is transparent and open, and the legislators are forced to make the hard choices about where to spend public resources. When law enforcement agencies keep forfeiture proceeds, their enforcement protocols and decisions are shaped by the access to funding, and thus they tend to over-enforce the laws where seizures are possible.

Hence Americans are increasingly being plagued by the seizure of cash, vehicle, and home by agencies who are enforcing laws at variance with the public’s desire for safety and enforcement.

My next post in this series will address asset forfeiture and federalism issues, and particularly on how federal bureaucrats can undemocratically commandeer local and state law enforcement to enforce their agendas.

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