While there are many implications of a potential shutdown of the federal government, one thing that won't stop is the use of federal asset seizure and forfeiture by law enforcement. That's because Congress doesn't fund that activity through appropriations; that money comes out of the Asset Forfeiture Fund, controlled by the Department of Justice. Indeed, these kind of budget battles increase the use of forfeiture by law enforcement agencies looking to sustain budgets when Congress won't pay the bills. In other words, the rights of Americans to private property may soon come under greater and sustained assault. The need for reform has never been greater.
Asset forfeiture hasn't always been a major revenue stream for law enforcement. Indeed, that policy proposal came before Congress in 1983, when the Comprehensive Crime Control Act was under consideration. During a May 1983 hearing of the Senate Judiciary Committee Assistant Treasury Secretary John Walker, Jr. proposed giving forfeiture funds to the Departments of Justice and Treasury during this exchange with the late Sen. Arlen Specter (R-PA):
Mr. Walker. The bill would also improve the method of payment for expenses incurred by the Government in conducting forfeiture actions by establishing forfeiture funds in the Departments of Justice and Treasury.
The establishment of these funds would allow the Government to conduct forfeiture actions with much greater dispatch while promoting overall cost savings. Better storage and maintenance of seized property would result, because Justice and Treasury would be able to balance forfeiture expenses with forfeiture proceeds.
Senator Specter [presiding]. How much do you think it likely that the Government would take in on forfeiture proceeds, Mr. Walker?
Mr. Walker. Well, I think that we can estimate that with forfeiture proceeds, the ability to seize and to forfeit and seize and sell administratively, we are talking in the many tens of millions of dollars, perhaps hundreds of millions of dollars.
Senator Specter. To what extent are there any proceeds for forfeiture available at the present time?
Mr. Walker. Well, there are not. The forfeiture proceeds today go into the general fund. So they are not available now for the use in defraying expenses of forfeiture, or for paying for the budgets of the law enforcement agencies involved.
In the politically charged environment of Reagan's War on Drugs, the notion of "forfeiture...paying for the budgets of the law enforcement agencies..." was an easy sell. Congress passed the Comprehensive Crime Control Act in 1984, and asset forfeiture quickly became a priority area for federal law enforcement.
Last year, federal asset forfeiture brought in over $4 billion dollars for federal law enforcement, some $450 million of which was sent to state and local law enforcement agencies through the "Equitable Sharing" program. It is worth noting that state and local law enforcement are able to access these federal forfeiture revenues outside of the normal appropriations channels, meaning that this money is ultimately spent with little real civilian or democratic oversight.
Larry Salzmann at the Institute for Justice wrote recently that "Civil forfeiture is now one of the most serious assaults on individual rights in America. It allows the government to take cash, cars, homes and other property from people without ever convicting or even charging them with a crime. Worse, civil forfeiture turns the American principle of innocent until proven guilty on its head." It is worth noting too that asset forfeiture has turned our notions of democratic governance on its head as well; no longer do executive branch agencies with law enforcement powers and forfeiture funds need Congressional appropriations to fund their activities. In the Oct. 2000 edition of the Miami Law Review, Brant Hadaway noted that:
Since the 1984 amendments, forfeiture has become an important measure by which law enforcement agencies have sought to raise revenue for their own departments.The federal laws are advantageous for local or state agencies, because, through federal "adoption" of local forfeitures, such agencies are usually able to receive more of the proceeds than they would under state law. Adoptive forfeitures have caused headaches for state lawmakers. Many states have laws restricting the disposition of forfeited assets to either a state's general treasury fund or to special funds for education or other programs unrelated to law enforcement. Local police departments circumvent such laws through the use of adoptive forfeitures.
As a result, with the help of the federal government, local police departments are able to directly raise cash for what they determine are their priorities, free from accountability to any political process.This has led to the alarming development of law enforcement gaining a pecuniary interest not only in forfeited property, but in the very profitability of the drug market itself. Certainly, this cannot be healthy for a democratic society.
Indeed, the "pecuniary interest" in forfeited property, and the laws that allow its procurement, have generated substantial efforts by law enforcement agencies in lobbying for the general expansion of criminal law. Retired Redondo Beach (CA) lieutenant Diane Goldstein notes:
Law enforcement has long relied on the cliché "we don't make the laws, we just enforce them" when called to task for their role in enforcing unjust laws. For many years this was the case, but in the last two decades the increased lobbying of law enforcement organizations – some motivated by considerations other than upholding the law or improving public safety – has undermined the role of police professionals by making them just one more special interest group.
Lobbying by law enforcement organizations is big business. It has contributed to the policy of mass incarceration as well as misprioritized law enforcement resources that emphasize the prosecution of drug offenses over violent crime. This lobbying has diverted critical fiscal resources from competing governmental services like education, health care and public infrastructure. All this has been done under leaders who are not working as stakeholders and collaborative partners with the voters, but simply protecting their own self interests.
Prominent examples of law enforcement lobbying organizations in California include the California Police Chiefs Association and the California Narcotics Officers Association, which use taxpayer dollars to fund their common lobbyist, John Lovell, to oppose any criminal justice reform, no matter how reasonable. His lobbying firm has received more than $1.3 million since 2003 from these two law enforcement clients alone.
Recent examples of reasonable reforms Lovell has successfully killed include bills in both the Senate and the Assembly this year that would have provided clarification to California's murky Compassionate Use Act that governs medical marijuana use in the state. The Assembly bill provided a regulatory model, while the Senate bill clarified the need for a legal entity that would prevent patients from having to access their medicine in the illegal market.
These standards would have helped to reduce crime and complaints by giving law enforcement the tools and clarity needed to fairly enforce the law, which patrol officers charged with enforcing it had been urging for years. In both cases, Lovell successfully attacked the bills by claiming they would allow the medical marijuana industry to profit in spite of clear language that shows the Senate bill only applies to nonprofit entities.
By providing a direct link between law enforcement activities and law enforcement budgets, asset forfeiture is one of the fundamental assaults the War on Drugs has perpetrated on American governance. Indeed, to abolish this funding mechanism would be to return the reins of governance back to the legislative branch of government, and ultimately to the voters.
Addendum: I am indebted to discussions with forfeiture recovery specialist David Gettler.