CARVING UP DEALERS' FORTUNES

Index

LOCAL OFFICIALS BEST SUITED TO CONTROL ASSETS

FORFEITURE LAWS MEAN A DENIAL OF CONSTITUTIONAL RIGHTS

BILL WOULD REVAMP WAY FORFEITURES ARE HANDLED

FORFEITURE RESTRICTIONS COULD HURT WAR ON DRUGS

Drug pushers across the nation have -- in theory at least -- been funding
their own ruin for a number of years now.

Asset forfeiture laws allow law enforcement officials to seize property --
including cash, cars and buildings -- that has either been used in drug
trafficking or purchased with drug money.

This has amounted to quite the windfall for the state's district attorneys
and local police chiefs, as well as law enforcement officials across the
nation.

It also has raised a number of questions.

Some question the idea of forfeiture itself, noting that assets can often
be seized without due process of the law, requiring citizens to prove their
innocence to get back their property.

Others question oversight of the money, the distribution of the money and
whether the promise of bigger seizures encourages police to hold off on
drug arrests.

Still others question what all the fuss is about.

Despite the questions, forfeiture has turned into a powerful tool for law
enforcement, which uses the money to fund programs that might otherwise be
paid for by taxpayers.

LOCAL OFFICIALS BEST SUITED TO CONTROL ASSETS

Articles written recently have resurrected issues relative to asset
forfeitures that have been ongoing since 1984, when the Omnibus Crime Bill
came into fruition. The dialogue is frequently accusatory toward law
enforcement, claiming financial gains by police agencies dictate whether or
not police officers will or will not make arrests.

In my 33 years in law enforcement, three of which were as a narcotics
officer and 21 as an administrator, I have never witnessed asset forfeiture
as a deciding factor in any narcotics investigation, arrest or search
warrant application. Good police officers have one common goal and that is
to remove drugs and drug dealers from our streets. However, as always, it's
good against evil.

Don't get me wrong; I use the term "justify" because I am a firm believer
that police officers must be held accountable for their actions. Police
officers have to navigate within the parameters of our Constitution. I want
to remove any doubt that the controversial forfeiture law has any impact on
the decision process when it comes to narcotics enforcement. Once an arrest
or search warrant has been effected, then and only then does the subject of
whether or not to seize property and/or money come into play. Remember that
by the time a search warrant is issued for a drug arrest, usually a lengthy
investigative process has occurred. Police officers have conducted a
preliminary investigation (many times purchasing drugs from the suspect).
They then prepare reports and an affidavit that describes and documents
what has transpired during their investigation. These in turn are presented
to the clerk of courts and on some occasions the district attorney for
review. If the report and affidavit support the issuance of a search
warrant, only then will the court issue one.

After the search warrant has been served and proof obtained that either
money or property has been acquired, purchased or used in drug activity,
then a request to seize the property or money can be made through the
appropriate judicial system. This also is a lengthy process that requires
documentation and presentation before the court.

As for the statement that 80 percent of the people whose property is seized
are never charged with a crime, I find that ludicrous. Massachusetts
General Law Chapter 94C: Section 47 clearly defines under what
circumstances and requirements property and money can be seized. Federal
laws 21 U.S.C.s 881 (e)(1)(A) and (e)(3), 18 U.S.C.s 981 (e)(2) and 19
U.S.C.s 1616a define federal guidelines for asset seizure and sharing. If
property is seized under criminal seizure statute, then a crime has
occurred. If a plea bargaining agreement is reached between the prosecutor
and the defense attorney, public perception may be those charges were dropped.

As The Standard-Times noted in one article, Massachusetts law allows the
local district attorney the option of filing civil charges without criminal
charges. I do not recall that ever happening within the four counties I
have worked.

I may be missing the big picture, but my local concern relates solely with
the ability to seize property and money of those individuals responsible
for the sale and manufacturing of drugs. I am not concerned with John
Hancock's boat being seized by the British Crown for failing to pay a duty
tax. I am not concerned with civil seizures for failure to pay taxes. My
concern has to do with individuals involved in criminal activity as it
relates to drugs.

The claim has been made that a lot of money and property have been seized
across this country. The knowledge I have pertains to the jurisdictions
where I have worked. In those jurisdictions, the small number of seizures
has in fact gone into further narcotic investigations and drug education,
and was received directly from narcotics investigations and prosecution.
The money and property seized were crucial to the small police departments
for narcotics investigations to buy technical equipment not necessarily
available within the normal budget and to educate police personnel and
young people in narcotics abuse and use.

The real issue is how politicians can get their hands on this money. It is
a control issue, it is a money issue and it is an issue that really has
nothing to do with the facts of seizure. The thought of federal politicians
controlling seized funds scares the hell out of me. They have enough
problems controlling the spending of tax dollars. The Big Dig, a $5,000
toilet seat for the military and a million-dollar restroom at a small
obscure national park are just some examples of the federal government
being out of control and not in touch with the real world.

Local government and police chiefs are more accountable to the public.
Police department spending comes under the watchful eye of a board of
selectmen or city council and the local accountant. I feel the local police
chiefs know the best way to utilize the seized funds. However, most police
chiefs realize seized property and money cannot be expected and anticipated
when it comes to budget planning. Seizures are the extra funds available to
do those narcotics investigations and training outside the scope of the
normal community budget. The bottom line is that the local police chief
knows best what the needs are for community spending with regard to
narcotics investigations and training.

I consider seized property and money best suited for training the public
and police personnel in the dangers of narcotics as well as drug
investigations. I don't think a senator or congressman sitting in
Washington has a clue where the money will be best spent. If they do, I
don't think it is to improve my community.

Michael Healy is the Westport police chief.

FORFEITURE LAWS MEAN A DENIAL OF CONSTITUTIONAL RIGHTS

Starting in 1970, a series of laws was passed by the U.S. Congress allowing
the government to take private property, which is called "forfeiture," with
a minimum of difficulty and legal restraint, based on the oft-stated claim
that "forfeiture is an invaluable tool in the fight against organized crime
and narcotics traffickers." While the original application of modern
forfeiture laws was for drug violations, the laws that trigger forfeiture
have greatly expanded, with the result that today we have more than 300
federal forfeiture laws. States and cities have followed the trend, of
course, with a similar and ever expanding array of laws.

Confiscation of property by the government is now a very big business --
one that will not be easy to curtail. It is estimated that the federal
government now confiscates nearly a billion dollars per year, with states
and cities likely confiscating as much or more.

The government, in its defense of forfeiture, would have you believe that
only criminals are subjected to its harsh procedures -- e.g., their theme,
"It takes the profit out of crime." First off, that is not true.

Compared to the application of other laws, a high percentage of those hit
with forfeiture are innocent victims. Second, as a civilized society, we
have learned that it is prudent to provide even suspected criminals with
some basic rights -- "innocent until proven guilty" being the first to come
to mind.

What is wrong with asset forfeiture?

- -- It punishes innocent people, especially wives and children. The medieval
legal fiction that the property itself can be guilty of a crime and that to
"punish" the property is not a punishment for the owners or users of the
property is blatant nonsense, of course.

In any case, why should wives and children lose their homes because their
husbands and fathers may have committed a crime?

- -- It is unconstitutional and vague. The Founding Fathers sought to protect
us from the notorious abuses of government confiscation of property that
England practiced at that time. Several Bill of Rights amendments address
this issue, particularly the Fourth Amendment, which says, in part, "The
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated." The Fifth Amendment assures us that we will be provided "due
process of law." Yet today, security against unreasonable searches and
seizures is virtually nonexistent.

- -- It encourages corruption, fraud and disrespect of law enforcement. If
property can be taken without due process and there is little or no
auditing of it once it's in government hands, what do you expect? The loss
of respect for government and particularly law enforcement is the greatest
cost of the forfeiture laws.

- -- The punishment is not proportional to the crime. In many states now,
automobiles can be confiscated for various perceived offenses, without
bringing charges and obtaining a conviction. Two drivers, one with a $250
clunker and one with a $70,000 sports car, pay vastly different fines --
the loss of the car -- for the same offense.

- -- Payoffs. There is considerable evidence that -- with concurrence of the
prosecutor -- real criminals often opt for forfeiture in lieu of serving time.

- -- It is not an effective deterrent of crime. The government repeatedly
defends its use of forfeiture by saying that it is an effective tool
against crime. Really? Is there any evidence of that? Is the Drug War a
success? Not according to the newspapers.

Drug usage is higher now than when these laws were first passed!

But there is another issue here: Are we Americans willing to support any
law, no matter how brutal, based on the argument that it might be a
deterrent to crime? Do we want to go back to public hanging, torture and
pillorying criminals in the public square? Surely, "effectiveness" in
fighting crime is not the only criteria we apply to laws in a civilized
society.

- -- There is little or no justice. The modern system of government
forfeiture provides little justice for the accused.

- -- Property can be taken without any charges being filed.

- Under the guise of "facilitation," all of a person's belongings can be
taken, including bank accounts, leaving nothing for legal defense.

- In civil forfeiture, the government does not provide counsel for the
indigent.

- To challenge a confiscation, the victim has a very short time to post
the necessary legal forms and often has insufficient cash to post the 10
percent bond.

But the main problem is that to be simply accused is to have your life
destroyed. Government prosecutors are constantly claiming that a forfeiture
victim can go to court and defend her property by proving the property was
never involved in a crime. There are many flaws with this concept, but the
chief ones are that legal fees will typically exceed the value of the
property and the property will lose value while "incarcerated." With the
time before trial being as much as two or three years, how does the victim
get to work and how do his wife and baby get to the doctor? What about the
deterioration and depreciation?

Surely the government pays for these losses and any damages if they lose
the case, right?

Of course not.

For the first time in nearly 30 years, we now have a chance to do something
about this injustice. Write the news media and your senators and ask that
they support the forfeiture reform bill now in the Senate.

We should not have to sacrifice "civil" society while striving to become a
"drug-free" society!

Leon Felkins is a retired major in the U.S. Army and a former member of
Forfeiture Endangers American Rights, a Washington lobby group.

BILL WOULD REVAMP WAY FORFEITURES ARE HANDLED

In the war against drugs, relying on law enforcement alone fails to address
the issue of demand, the effects of drugs on users and on our communities.
All of us know that an essential element for creating a safer community is
a stronger and trusting relationship between its residents and law
enforcement agencies.

For these reasons, I have filed legislation requiring the establishment of
a nine-member advisory committee to advise individual district attorneys on
the use and distribution of public funds created by the seizure of assets
during a drug raid. Included in its membership will be advocates and
persons in recovery.

Currently, under state law, seized assets are distributed between the
office that prosecuted the case, either a district attorney or the attorney
general, and the city, town or state police department involved in the
seizure. Although it allows for expenditure for treatment and anti-drug
programs of up to 10 percent, the present law does not require that these
public assets be used for such programs. Nor does it require filing of a
report detailing funds received and expended. It does require,
nevertheless, the filing of an annual report only for money distributed for
drug rehabilitation, drug education and other anti-drug programs. The law
fails to delineate how forfeiture assets may be used, giving complete
discretion to each district attorney.

The legislation I filed seeks to change this. Under House Bill 3097, 40
percent of assets seized will be distributed to the police department
involved and 60 percent of such funds to the prosecuting district attorney
or attorney general. Of this 60 percent, 20 percent must be distributed,
according to an advisory committee's recommendation, for drug
rehabilitation and anti-drug or neighborhood crime watch programs by the
district attorney's office. According to The Standard-Times, "nine of the
district attorneys surveyed by the newspaper average six percent of their
drug forfeiture accounts on community programs in 1997 and 1998." We must
do better. Education, prevention and treatment are important weapons in the
fight against drugs.

In addition, Bill 3097 would require each district attorney and police
department to annually file a detailed report on funds received under the
drug forfeiture law and on their distribution and use, regardless of
purpose, to the House and Senate Ways and Means committees.

Why do we need the change? It's simple: the use of taxpayer funds cannot
and must not occur hidden from public scrutiny or from oversight by the
Massachusetts Legislature, which constitutionally is responsible for
appropriation of all public money. The appropriation of public funds is not
an administrative act but a legislative one. The public interest is greatly
served when information on the expenditure of public dollars is open to
public review. Unfortunately, the public perception is of a closed-door
approach to how drug forfeiture money -- which is, when all is said and
done, public money -- is being used by some district attorneys.

There are district attorneys who invite public participation by having
committees that review anti-drug or treatment proposals and have a say in
allocation of funds for such programs. This partnership approach, essential
in the fight against drugs, is refreshing and it ensures, because of public
participation, that use of forfeiture money meets the community's needs in
its fight to prevent drug use and crimes associated with it and in its
effort to help those in need of treatment.

As we know, this is the exception and not the norm among district
attorneys. This partnership, because it is not required by law, may end
with the election of a new district attorney. A successor's approach may be
that of other current district attorneys -- we will call you, don't call
us. For many, this creates the appearance that the drug forfeiture money is
a secret fund of public dollars used to reward political friends. This is
the wrong methodology for fighting the war on drugs.

The changes sought in the law are minor in scope, yet major in impact.
Money and proceeds received by prosecuting district attorneys must still be
deposited in a separate law enforcement trust fund with the state
treasurer. A district attorney may still use such funds for investigations
- -- without revealing their nature or targets -- or for other law
enforcement activities at their discretion. The difference is that there
will be accountability due to new financial reporting requirements. The
difference is that 20 percent will be targeted for prevention, education
and treatment, essential elements in a holistic approach to the drug
problem we face. The difference is that the community will be a partner in
making decisions about spending of public funds. This reform will
strengthen law enforcement and community efforts against drugs. Something
that we can all agree upon.

Rep. Antonio Cabral, D-New Bedford, is chairman of the Committee on
Election Laws.

FORFEITURE RESTRICTIONS COULD HURT WAR ON DRUGS

Drug forfeiture laws are a powerful and important tool in the public's
battle against drug dealing. The laws regarding forfeiture provide that
assets, including cash, used for the purpose of furthering a drug-dealing
operation as well as those assets acquired from drug-dealing profits, may
be seized and forfeited to the Commonwealth of Massachusetts. Forfeited
assets are split between the prosecutor's office and the police department
involved in the drug investigation and arrest. The message is clear: deal
drugs, you will be prosecuted, and if convicted, you will go to jail and
forfeit the property and money accumulated from your drug-dealing operation.

While drug dealing has affected every community, the devastation it causes
has impacted urban neighborhoods to the greatest degree. Innocent lives
have been lost, families devastated and neighborhoods destroyed. Drug
dealing has been a cancer for many inner-city neighborhoods. Drug laws,
including mandatory sentencing and forfeiture, while not a cure, represent
an effective tool in reclaiming our neighborhoods.

While few people question the appropriateness of taking criminal drug
dealers' assets, some suggest that the accounts are too secretive. Money
and assets forfeited are clearly public funds and should be accounted for,
subject to internal and external audits, and used only for lawful purposes.
These accounts have been relied upon by district attorneys to help pay for
unanticipated or unbudgeted items and to assist in criminal investigations.
The Legislature recognizes that unforeseen circumstances, including
unplanned investigations and emergencies, occur in district attorneys'
offices. Securing a supplemental budget to cover the costs is oftentimes
neither practical nor timely. Drug forfeiture assets are the best source of
immediate funding to offset some of these costs.

Without access to this account and with the inability to secure a timely
supplemental budget, some investigations and prosecutions may be subject to
delay. This option would be unacceptable to the district attorneys, to the
victims involved and to the communities we serve.

The district attorneys fully support the use of available forfeited drug
money by community groups/agencies in our effort to combat drug use.
However, changes to the drug forfeiture laws that further restrict seizures
and/or forfeiture by reducing the amount available to local police
departments and district attorneys' offices will adversely effect our drug
investigations and prosecution efforts.

Michael Sullivan is the Plymouth County district attorney.