SOUTHERN LAWMAKERS DISCUSS DRUG MONEY FORFEITURE

CORAL GABLES, Fla. -- The debate over the way police handle drug
money they seize became a major focus of lawmakers from 16 southern
states who gathered here this weekend.

"This is almost as controversial as the presidential election," said
Dana Dembrow, a Maryland lawmaker. Forfeiture was the subject of one
of two main sessions at the four-day winter meeting of the Southern
Legislative Conference of the Council of State Governments. In
addition, several legislators said they plan to pursue reform of
forfeiture laws in their states. Dembrow said he would propose that
the Southern Legislative Conference ask Congress to help settle the
issue. Forfeiture has become an issue nationwide this year. In
articles earlier this year, The Kansas City Star found police were
evading state laws across the country, including in Missouri, by
handing off property and cash they seize in drug cases to a federal
agency, such as the Drug Enforcement Administration. The agency keeps
a cut, usually 20 percent, and returns the rest to police. Of the 16
states in the Southern Legislative Conference, including Missouri,
The Star checked 14 for the series -- all except Mississippi and
Virginia. In each of them, the newspaper found either cases in which
police handed off seized property to a federal agency or found police
who acknowledged they routinely do. Most states have laws that
prevent police from unilaterally turning over seized property to a
federal agency.

In fact, of the 16 southern states, only Mississippi does not have
such a law. In a panel discussion that he moderated Saturday,
Dembrow, who is chairman of the southern group's Intergovernmental
Affairs Committee, asked four panelists whether federal, state and
local police were circumventing state forfeiture laws. Sen. Harry
Wiggins of Missouri said it was clear that in his state and others,
seized money is not being used for purposes that taxpayers expect.

Drug money forfeited under Missouri law is supposed to go to public
education, said Wiggins, a Kansas City Democrat who has a reform bill
pending. He said he was not pointing fingers at law enforcement or
trying to accuse anyone of wrongdoing, but that laws need to be
followed -- and in Missouri, the law is clear, he said. "The will of
the people should be the supreme law," Wiggins said. "I believe the
people of Missouri have spoken." Two attorneys from the Justice and
Treasury departments said there was no attempt by their agencies to
circumvent state forfeiture laws. The appearance was unusual.

Justice officials have seldom spoken publicly this year about
forfeiture. They said the program that allows police and federal
agencies to share forfeited property has been a financial boon for
law enforcement. Since its inception in 1986, state and local law
enforcement agencies had received more than $2 billion, according to
statistics handed out by the attorneys.

The 16 southern states alone accounted for more than $1 billion.
Steven Schlesinger, trial attorney for the Department of Justice
Asset Forfeiture and Money Laundering division, said the money has
been spent for investigations, training, uniforms, weapons and cars.
"That is money that didn't have to come out of your taxpayers'
pockets," Schlesinger said. "States, communities and law enforcement
agencies have benefited tremendously from this program." He said that
because of the program's benefits it would be shortsighted for states
to withdraw from it. Schlesinger said the hand-off of seizures from
police to federal agencies was only a small percentage of the $2
billion. However, he acknowledged he could not say exactly how much
money that was. Earlier this year the Justice Department gave The
Star figures showing federal agencies accepted a total of more than
$208 million over a three-year period from local and state police.
Schlesinger said the primary goal of the forfeiture program is to
punish criminal activity by depriving criminals of the fruits of
their crimes and to take away property used to facilitate a crime.
Several of the lawmakers in the audience of more than 40 questioned
Schlesinger on a variety of issues. For example, Schlesinger said
state and local police must follow strict guidelines before a federal
agency will accept a seizure.

But one legislator said federal agencies appear to be operating much
differently. Schlesinger threw some of the responsibility back on the
states. Law enforcement agencies in some states are hampered by their
own inadequate forfeiture laws, he said. He pointed to Missouri as an
example of a state where the law forces police to go to federal
agencies with their seizures. "It has a major loophole," he said.
Missouri law requires a felony conviction before property can be
forfeited, and that becomes a problem for police who find a large
amount of cash but can't prove there was a crime, he said. But police
can use federal law because it permits a law enforcement agency to
declare property forfeited without a conviction. Steven Kessler, a
New York criminal defense attorney, disputed that Missouri had a
loophole. "What a novel idea," Kessler said. "I advocate that
loophole to each and every one of you in this room." Requiring a
criminal conviction for a forfeiture is actually a protection for the
public, he said. "I must ask you, is it a violation of any law in any
state in the country to be carrying cash?" Kessler asked. Kessler, an
expert on forfeiture law who has written two treatises on the
subject, said reform has begun across the country. Sen. Douglas Henry
of Tennessee said he was concerned to learn at the conference that
according to his state's and federal forfeiture law property can be
taken without a conviction. He said he plans to ask for an immediate
examination of his state's law. Sen. Yvonne Miller from Virginia said
she was going to send her state's forfeiture statute to a number of
outside agencies such as the Legal Defense Fund and the National
Association for the Advancement of Colored People for examination.
"I'm horrified by what I hear," said Miller, who has been in the
Virginia Legislature for 16 years. "This is legalized extortion."
Sen. Jim Hill from Arkansas said he had asked Kessler to examine his
forfeiture law to look for loopholes that could be amended. But
Dembrow said he believed only Congress could stop the hand-off
between state and local law enforcement. He said he has asked Wiggins
to help him formulate a policy statement asking Congress to help
determine who should benefit from forfeited drug money and how state
and federal forfeitures can be separated. That policy would be voted
on next summer at the Southern Legislative Conference annual meeting.
Dembrow referred to one of his constituents, a 64-year-old woman who
is physically and developmentally disabled and may lose her home. Her
children who no longer live there had used drugs. After local police
searched her home for drugs several times but found only a small
quantity, they reported it to the U.S. attorney because they couldn't
charge her with a crime.

Maryland law requires a conviction before someone's home can be
taken. The federal government initiated forfeiture proceedings
against the property, which has been in the woman's family for more
than 100 years. "That is a real heartbreak of an example of what is
going on here," Dembrow said. He said he will look into the case.
Forfeiture has become an issue this year in a number of other states.

Just this month, Utah and Oregon voters passed forfeiture initiatives
redirecting seized money away from police.

A similar initiative failed in Massachusetts. In California, the
Legislature passed a forfeiture reform bill in August, but it was
vetoed by Gov. Gray Davis. In Kansas and Missouri, reform bills will
be considered in the next session.

Southern Legislative Conference: Alabama, Arkansas, Florida, Georgia,
Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina,
Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia