by Ed Lyon
The two supreme governmental systems in the U.S. are the overall federal government and the lesser, yet still quite powerful 50 state governments. The federal Constitution and its amendments delineate certain powers exclusive to the federal government while limiting some of its powers and ceding all other powers to the states. Powers exerted and laws enacted by the states must not violate minimal federal constitutional standards unless they do so in a fashion to increase or enhance their citizens’ rights or provide more protection than does the federal Constitution. Federal issues, when pressed, override states’ positions.
In the 1980s, President Regan declared war. This was not a war authorized by Congress but was enthusiastically endorsed and fought by heavily armed law enforcement agencies. The enemy they went after was illegal drugs. One of the weapons developed to aid this new war is a legal procedure called Civil Asset Forfeiture (“CAF”). By depriving a drug dealer or kingpin of funds and/or other property using CAF, proponents reasoned it would be easier to win the war.
The U.S. economic engine suffered a major blow with the fall of the Soviet Union in 1989-1990. When the U.S. lost a major enemy, it turned upon its own people, incarcerating them on a wholesale basis to the point of morphing from a military-industrial complex to a military-penal-industrial complex. Workers who once built tanks and warplanes began building jails, prisons, courthouses, and lawyers’ offices. No doubt CAF funds likely provided a fair amount of the monies required to build up such a massive police state.
As it all too often happens with government programs, CAF has come to be an abusive tool by law enforcement. Rather than focusing on drug dealers and kingpins, cops began victimizing hard-working, innocent citizens. Average people are losing their homes and life savings in CAF proceedings because a teen aged son or nephew has, shares, or sells a single marijuana cigarette on the premises with the CAF funds being split between cops and prosecutors.
Originally, CAF did not have to accompany convictions for an underlying criminal charge or even an underlying criminal charge that is never adjudicated. The ease with which cops can victimize average citizens, destroying their lives for the purpose of raising additional revenue, is extremely harmful according to recent findings published by the Institute for Justice.
Among these findings is that only a single percentage point in the increase of local unemployment “was associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.” Another reported result is that if a police or sheriff’s department were to spend $1,000 of CAF monies per officer that “would mean solving just 2.4 more crimes” for every 1,000 crimes reported. Another study found that in 55 percent of CAF proceedings in South Carolina, cops took less than $1,000. Hardly indicative of cops pursuing drug dealers or kingpins.
Over half of the states’ legislatures have enacted laws to curtail CAF proceedings by cops. The cops’ response has been to turn to big brother. Under the federal government’s supremacy to the states, it can adopt the CAF made by local or state cops. Up to 80 percent of the seizure is returned to the cops and prosecutors who initiated the CAF. The remaining 20 percent goes into an Equitable Sharing Fund, spread out to state and local law enforcement on a yearly basis.
As supported by statistical data and reports, the study concluded that “increased forfeiture funds had no effect on crime fighting ... was strongly linked to worsening economic conditions,” and overall “results suggest law enforcement agencies pursue forfeiture less to fight crime than to raise revenues.”
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