(Mint Press) – In this post-housing crash economy, many law enforcement agencies have come to rely on funds obtained from asset forfeitures to meet budget shortages. These funds are commonly thought of as the symbolic end of a drug conviction case; however, their existence has raised concerns of overreach and malpractice by law enforcement.
Between 1989 and 2010, the United States Attorneys seized approximately $12.6 billion in regards to drug trafficking violations. Since 2006, the federal government has accelerated its seizure policy, netting on excess of $1 billion per year. The situation has became so extreme that in 2009, a story broke that suggested that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ordered Leatherman tool kits for training agents engraved “Always Think Forfeiture.”
In 2012, the federal government seized $4.18 billion, a 139 percent increase from the $1.75 billion from 2011. There is a fear that government on all levels, federal, state and local, has grown addicted to these funds.
Despite attempts by Congress to shift the burden of proof to the government and to limit the government’s ability to seize, the asset seizure rate has increased exponentially.
In light of shrinking budgets, the draw of easy money may be too alluring to resist.
For example, in 2009, the Rockford County (NY) District Attorney’s Office received $15.4 million from the Department of Justice in Equitable Sharing Program payments. “We use it for crime prevention programs. We’ve funded all kinds of programs in the county … We use it to supplement the (narcotics) task force. We use it to buy a tremendous amount of equipment and other things that we need to operate — buy money (for undercover drug buys) or something else,” Rockland County District Attorney Thomas Zugibe said of forfeiture money. “It’s all being used for law enforcement that the county otherwise would have to finance.”
In the United States, there are two ways law enforcement can seize assets. First, and most widely recognized, is that the government can conduct a criminal forfeiture. In this scenario, the assets and property that were involved in the criminal activities of a convicted felon can be declared forfeited and seized by the government. This type of forfeiture only occurs if the statute violated allows for a forfeiture option when sentencing. An example of such a statute is drug trafficking.
More commonly, however, assets can be forfeited and seized civilly. In this style of seizure, it is the asset itself, and not its owner, that is found to be in noncompliance of the law. As unusual as this may sound, legal cases for civil asset forfeiture are typically held against the property itself, such as the case of United States of America v. $124,700 in U.S. Currency or United States of America v. One Mercedes 560 SEL.
In civil forfeiture cases, the government only has to prove that there is a preponderance of evidence to suggest that the property in question was used or obtained illegally; unlike a criminal seizure, which demands that the prosecution satisfies the burden of proof. As such, most seizures — as many as 90 percent — conducted by the government are civil and may or may not be related to a criminal prosecution.
In 1984, Congress enacted the Comprehensive Crime Control Act, which allows federal prosecutors the ability to seize assets as a means to fight crimes. Under the Equitable Sharing Program, proceeds from sales of assets seized by federal authorities, such as the U.S. Marshals or the Drug Enforcement Agency (DEA), is shared with state and local authorities that participated in the investigation leading to the seizure.
This has, for many, created a phenomenon known as “policing for profit.”
Policing for profit
The news is filled with stories of individuals that had personal possessions seized by the government. For example, Kerri Kaley, in 2008, had her assets frozen by the federal government after it was argued that her wealth came from her illegally selling medical equipment. The seizure prevented her from hiring counsel for her equipment selling charge. This issue was argued in federal Appellate Court as a possible infringement of Kaley’s Sixth Amendment right to adequate counsel.
In United States of America v. $124,700, a police dog detection of narcotics served as sufficient evidence for the government to confiscate the money. This is despite the fact that 90 percent of all American currency has a trace amount of cocaine on them; in a large enough concentration, a drug-sniffing dog is likely to give a false positive to currency.
Luther and Meredith Ricks had their life savings of $400,000 seized by the federal government from their home. The couple had a strong distrust of banks and kept their money in a safe at their home. In 2007, after a break-in, police found a small amount of medicinal marijuana, which was used to relieve arthritic pain after hip replacement surgery. Even though the Federal Bureau of Investigation had no part of this particular investigation, in accordance to the Equitable Sharing Program, they were called in to seized the discovered assets.
In its “Problem-Oriented Guides for Police Response Guides Series No. 7,” the U.S. Department of Justice spells out its intentions with asset forfeitures: “For many years, law enforcement agencies around the nation have faced shrinking budgets …Though it is an enforcement tool, asset forfeiture can assist in the budgeting realm by helping to offset the costs associated with fighting crime.“
Some feel that in allowing law enforcement to financially benefit from the cases it prosecutes creates a conflict of interest. Steven L. Kessler, a forfeiture law expert, feels that the forfeiture funds could become self-actuating: “If you create a monster, the monster must be fed. It gives law enforcement the incentive to go after things that may not be forfeitable but they still go after individuals for funds to increase the pot and pay themselves from that pot,” Kessler said.
The inherent problem in this is that in relying on seizures to supplement law enforcement operations, it is creating a system in which law enforcement must “eat what they kill.” Law enforcement for any reasons other than protecting and serving the law corrupts the law. An example of this lies in the fact that most border cops service southbound lanes than northbound lanes.
“If a cop stops a car going north with a trunk full of cocaine, that makes great press coverage, makes a great photo. Then they destroy the cocaine,” said Jack Fishman, an IRS special agent for 25 years who is now a criminal defense attorney in Atlanta. “If they catch ‘em going south with a suitcase full of cash, the police department just paid for its budget for the year.”
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