POLICING FOR PROFIT: THE DRUG WAR'S HIDDEN ECONOMIC AGENDA

A number of aggrieved and hapless citizens converged on Washington during
the summer of 1996, invited by House Judiciary Committee chairman Henry
Hyde to recite their misfortunes at the hands of the government's drug
police. All had had their property taken by police, then were let go and
never prosecuted. All were innocent of wrongdoing. Remarkably, the hearing
was not about corrupt cops shaking down helpless individuals but about the
law authorizing the police to
do what they did--the civil forfeiture law, which transfers ownership to
the government of any property that "facilitated" a drug crime. Last fall,
the Judiciary Committee completed its work, proposing a series of partial
and controversial reforms now pending before Congress.

The stories were sad survivors' tales, each recounting a moment of
unexpected financial ruin followed by years of mostly fruitless attempts to
undo it. A pilot told of how the government destroyed his air charter
business: The Drug Enforcement Administration seized his airplane when a
drug dealer chartered it; $85,000 in legal fees later, the pilot filed for
bankruptcy and became a truck driver. A landscaper testified that while on
a purchasing trip, he had been stripped of $9,000 by an airport drug
interdiction unit, then sent home without a receipt, on grounds that only
drug dealers carry so much cash.

Legislators also heard the tale of Mary Miller (a pseudonym), a 75-year-old
grandmother dispossessed of her home for the sins of her fugitive,
drug-dealing son.

When accounts like these appear in the newspapers, they seem to be
aberrations --mishaps by some unskilled police officers or the handiwork of
a few rogue cops. Few people believe that police routinely await the chance
to harass and impoverish elderly women like Mrs. Miller. Yet the twenty
police who confronted her were not keystone cops; they included not only
local police officers but also agents from the sheriff's office, the U.S.
Marshals Service, the F.B.I. and the I.R.S. These officers were probably
much less concerned with harassing Mrs. Miller than with her property. By
their presence at the seizure, the local agencies and the Justice
Department each acquired a claim to a share of the house. Miller was on the
wrong side of a police funding raid, and since 1984 many thousands of other
Americans have been as well.

Nineteen eighty-four was the year that Congress rewrote the civil
forfeiture law to funnel drug money and "drug related" assets into the
police agencies that seize them. This amendment offered law enforcement a
new source of income, limited only by the energy police and prosecutors
were willing to put into seizing assets. The number of forfeitures
mushroomed: Between 1985 and 1991 the Justice Department collected more
than $1.5 billion in illegal assets; in the next five years, it almost
doubled this intake. By 1987 the Drug Enforcement Administration was more
than earning its keep, with over $500 million worth of seizures exceeding
its budget.

Local law enforcement benefited from a separate "equitable sharing"
provision, which allows local police to federalize a forfeiture. This law
gives police a way to circumvent their own state forfeiture laws, which
often require police to share forfeited assets with school boards,
libraries, drug education programs or the general fund. Instead, local
police can conspire with the U.S. Justice Department to evade these
requirements through paperwork: If a U.S. Attorney "adopts" the forfeiture,
80 percent of the assets are returned to the local police agency and 20
percent are deposited in the Justice Department's forfeiture fund. As of
1994 the Justice Department had transferred almost $1.4 billion in
forfeited assets to state and local law-enforcement agencies. Some
small-town police forces have enhanced their annual budgets by a factor of
five or more through such drug-enforcement activities.

These financial benefits are essentially there for the taking, thanks to
expansive laws from Congress and a green light from the Supreme Court.
Since the forfeiture law extends to any property that "facilitated" a drug
crime, it covers a potentially enormous class. Cars, bars, homes and
restaurants have all been forfeited on grounds that they served as sites
for drug deals, marijuana cultivation or other drug crimes. Are the bills
in your wallet forfeitable? Probably, because an estimated 80 percent of
U.S. paper currency has been
contaminated by cocaine residue, which has been held sufficient by some
courts to warrant forfeiture. Meanwhile, according to the Supreme Court,
few constitutional safeguards apply to forfeiture cases, in which the
seized property is deemed the defendant (as in United States v. One 1974
Cadillac Eldorado Sedan) and the defendant is presumed guilty.

Owners who want to contest seizures must put up a bond, hire a lawyer and
rebut the presumption of guilt with proof that the property is untainted by
criminal activity. There is no constitutional requirement that the owner
knew of any illegal activities, and forfeiture may occur even if the owner
is charged and acquitted. In other words, if you are either related to a
drug dealer or mistaken for one, you may find yourself legally dispossessed
of your property without effective recourse.

There is, of course, a clever symmetry in the forfeiture law. It makes for
some appealing soundbites, like former Attorney General Dick Thornburgh's
boast that "it's now possible for a drug dealer to serve time in a
forfeiture-financed prison after being arrested by agents driving a
forfeiture-provided automobile while working in a forfeiture-funded sting
operation." According to a 1993 report on drug task forces prepared for the
Justice Department, we can expect entire police agencies to be funded in
this way. Heralding the prospect of "free" drug-law enforcement, the report
noted that "one 'big bust' can provide a [drug] task force with the
resources to become financially independent. Once financially independent,
a task force can choose to operate without Federal or state assistance."

But agencies that can finance themselves through asset seizures need not
justify their activities through any regular budgetary process. The
consequence is an extraordinary degree of police secrecy and freedom from
legislative oversight. The prospect of a self-financing law-enforcement
branch, largely able to set its own agenda and accountable to no one, might
sound promising to Colonel North or General Pinochet, but it should not be
mistaken for a legitimate organ in a democracy. It was anathema to the
Framers, who warned that "the purse and the sword ought never to get into
the same hands, whether legislative or executive," and sought to
constitutionalize the principle by establishing a government of separate
branches that serve to check and balance one another.

Whether forfeiture's financial rewards will prove large enough to spawn a
permanent, fully independent sector of unaccountable law-enforcement
agencies is not yet clear. What is clear is that these rewards have already
corrupted the law-enforcement agenda of agencies that have grown dependent
on them. At the Justice Department, a steady stream of memos exhort its
attorneys to redirect their efforts toward "forfeiture production" so as to
avoid budget shortfalls. One warns that "funding of initiatives important
to your components will be in jeopardy if we fail to reach the projected
level of forfeiture deposits." Several urge increasing forfeitures "between
now and the end of the fiscal year." The department's task force study
bluntly suggests that multi-jurisdictional drug task forces select their
targets in part according to the funding they can produce.

What happens when law-enforcement agencies rewrite their agendas to target
assets rather than crime? Contemporary police, prosecution and court
records furnish the answer. As expected, they disclose massive numbers of
seizures, a large majority of which are unaccompanied by criminal
prosecution. They also show a criminal justice system held hostage to the
exigencies of law enforcement's self-financing efforts, endangering the
public welfare in at least three ways:

Distorted Law-Enforcement Policies.

The forfeiture reward scheme has heightened police interest in drug-law
enforcement, but with badly skewed priorities. Economic temptation now
hovers over all drug-enforcement decisions: Methamphetamine distribution
may demand more enforcement, for example, but targeting marijuana deals is
usually far more profitable because methamphetamine transactions tend to
occur on condemned or valueless property. The Justice Department's study
suggests precisely this focus in noting that as asset seizures become
important "it will be useful for task force members to know the major
sources of these assets and whether it is more efficient to target major
dealers or numerous smaller ones."

One example of skewed priorities is the "reverse sting" that targets drug
buyers rather than sellers, a now common tactic that was rarely used before
the law allowed police departments to retain seized assets. The reverse
sting is an apparently lawful version of police drug dealing in which
police pose as dealers and sell drugs to unwitting buyers. Buyers may be
less dangerous and less culpable, but operations against them are easier
and safer, and reliably result in seizure of the buyer's cash. According to
one participant in these operations, in his police force reverse stings
"occurred so regularly that the term reverse became synonymous with the
word deal." A similar motivation may underlie the otherwise baffling policy
adopted by both the New York City and Washington, D.C., police shortly
after the forfeiture retention amendments were passed, directing police to
seize the cash and cars of people coming into the city to buy drugs. Of
course, arresting buyers before the sale means that the drugs that would
have been purchased will continue to circulate freely. But as former New
York City Police Commissioner Patrick Murphy explained to Congress,
forfeiture laws give police "a financial incentive to impose [spot-check]
roadblocks on the southbound lanes of I-95 which carry the cash to make
drug buys, rather than the northbound lanes, which carry the drugs. After
all, seized cash will end up forfeited to the police department, while
seized drugs can only be destroyed."

Worse, by linking police budgets to drug-law enforcement, forfeiture laws
induce police and prosecutors to neglect other, often more pressing crime
problems. These officials make business judgments that can only compete
with, if not wholly supplant, their broader law-enforcement goals. The
Justice Department has periodically made this practice official policy, as
in 1989, when all U.S. Attorneys were directed to "divert personnel from
other activities" if necessary
to meet their commitment to "increase forfeiture production."

Unjust Treatment.

For law-enforcement agencies dependent on forfeiture income, fairness, too,
may be a luxury they can ill afford.

This is most obvious at the sentencing of drug offenders, where forfeiture
laws provide an avenue for affluent defendants to buy their freedom. Plea
bargains are struck that commonly favor kingpins willing to forfeit their
assets and penalize "mules" with nothing to trade. In eastern
Massachusetts, Boston Globe reporters found that agreements to forfeit
$10,000 or more bought elimination or reduction of trafficking charges in
almost three-quarters of such cases. The prosecutors involved had a
compelling financial reason to recalibrate the scales of justice in this
way because 12 percent of their budgets was financed through forfeiture
income. At the federal level, Federal Circuit Court Judge Juan Torruella
has noted that in his experience, penalties for drug trafficking are
imposed on the less culpable, while "the 'big fish' are able to work out
deals with the government which may leave them with light sentences or even
without any prosecution."

It is not a good omen that Attorney General Janet Reno recently requested
that all U.S. Attorneys consult forfeiture specialists before settling
criminal cases.

Police Lawlessness.

Finally, growing numbers of law-enforcement agencies have been morally and
sometimes criminally deformed by their dependence on drug war financing. In
Paducah, Kentucky, the lawless operations of one agency--the Western Area
Narcotics Task Force, or WANT--came to light when the discovery of almost
$66,000 secreted in its headquarters provoked an official inquiry and major
scandal. Among other things, reporters discovered that WANT had promised
federal funders that it would produce a 20 percent rise in asset seizures.
According to the Paducah police chief's estimate, 60 percent of the money
found in WANT headquarters had been improperly seized. Often the seizures
had no connection to any drug transaction. One seizure was as small as 93
cents, showing, according to the Paducah Sun, "once again that the officers
were taking whatever the suspects were carrying, even though by no stretch
could pocket change...be construed to be drug money."

Unfortunately, there are numerous other examples of police agencies
targeting assets with no regard for the rights, safety or even lives of the
suspects. In one federal civil rights judgment against an Oakland,
California, drug task force, we read an officer's admission that his unit
operated "more or less like a wolfpack," driving up in police vehicles and
taking "anything and everything we saw on the street corner." In Louisiana,
police illegally stopped and searched massive numbers of drivers, seizing
money that was then diverted to police department ski trips and other
unauthorized uses. In Los Angeles, a Sheriff's Department employee revealed
that deputies routinely planted drugs and falsified police reports to
establish probable cause for cash seizures. Recent investigations in
Florida, New Jersey, Philadelphia, Boston and Washington State have exposed
similar lawlessness by police in search of forfeitable cash.

Then there is the appalling case of Donald Scott, a 61-year-old wealthy
California recluse. Scott lived on a $5 million, 200-acre ranch in Malibu
adjacent to a large recreational area maintained by the National Park
Service. Tragically for him, in 1992 the Los Angeles County Sheriff's
Department received a false report that Scott was growing several thousand
marijuana plants on his land. It assembled a team--including agents from
the Los Angeles Police Department, the Park Service, the D.E.A., the Forest
Service, the California National Guard and the California Bureau of
Narcotic Enforcement--to investigate the tip, largely through the use of
air and ground surveillance missions. Despite several unsuccessful efforts
to corroborate the informant's claim, and despite advice that Scott posed
little threat of violence, the L.A. Sheriff's Department dispatched a
multi-jurisdictional team to conduct a military-style raid. On October 2,
1992, at 8:30 a.m., thirty officers descended upon the Scott ranch with
high-powered weapons, flak jackets, dogs, a battering ram and what
purported to be a lawful search warrant. After knocking and announcing
their presence, they kicked in the door and rushed through the house. There
they saw Scott, armed with a gun in response to his wife's screams. With
Scott's wife watching in horror, agents fired two bullets into Scott's
chest and killed him. They found no marijuana plants, other drugs or
paraphernalia anywhere.

Following Scott's death, the Ventura County District Attorney's office
conducted a five-month investigation of the raid. The seventy-page report
found that there was no credible evidence of present or past marijuana
cultivation on Donald Scott's property. It found that the Los Angeles
County Sheriff's Department knowingly sought the search on legally
insufficient information, and that much of the information supporting the
warrant was false while exculpatory evidence was withheld from the judge.
The report concluded that the search warrant "became Donald Scott's death
warrant," and that Scott was needlessly killed.

The targeting of Donald Scott, and the massive multi-jurisdictional police
presence, cannot be explained as any kind of crime control strategy.
Rather, as the District Attorney's report concluded, one purpose of this
operation was to garner the proceeds expected from forfeiture of the $5
million ranch. The investigation found that as they invaded the property,
the officers -- with two asset forfeiture specialists in tow -- were armed
with a property appraisal of Scott's ranch, a parcel map of the ranch
marked with the sale price of a nearby property and instructions to seize
the ranch if at least fourteen marijuana plants were found.

Scott's case and the others should prompt reform, and indeed major reforms
are called for by a broad-based coalition including the American Civil
Liberties Union and the Cato Institute. But thus far the forfeiture
industry has enjoyed an astonishing immunity to scrutiny by lawmakers. Even
the Hyde forfeiture reform bill, which would institute some significant
procedural reforms, would not redirect the stream of assets flowing into
the police agencies that seize them. Representative Hyde did not seek to
curtail forfeiture's financial rewards, he says, largely because of the
continued, vigorous opposition of law-enforcement agencies. But unless
Congress wants to abandon any hope of regaining control over the drug war
bureaucracy it has created, it had better try to do so sooner rather than
later.

The solution is not hard to envision: A law mandating that forfeited assets
be deposited in the Treasury's general fund, rather than retained by the
seizing agency, would cure the forfeiture law of its most corrupting
effects. This single measure would restore budgetary oversight to law
enforcement and remove the incentive that leads police agencies to distort
their agendas for budgetary reasons. A less sweeping reform, but important
nonetheless, would repeal the law that permits local police forces to evade
their state laws by "federalizing" their forfeitures.

Reformers might also challenge forfeiture rewards in the courts.

Although the Supreme Court has not placed many meaningful limits on the
government's forfeiture powers, the logic of some past decisions unrelated
to forfeiture supports a strong argument that self-financing
law-enforcement agencies are constitutionally objectionable on both
conflict-of-interest and separation-of-powers grounds. A more fundamental
fact is that the Constitution was born in part to eliminate such
institutions. Financial incentives promoting police lawlessness and
selective enforcement, in the form of writs of assistance authorizing
customs officers to seize suspected contraband and retain a share of
proceeds, were high on the list of grievances that triggered the American
Revolution. For the colonists, the writs were an outrage that brought with
them corrupt officials, lawless seizures, selective enforcement and
fabricated evidence. From these complaints, John Adams later said, "The
child Independence was born." The same fundamental grievances are now
lodged against our present forfeiture law. When they reach the Supreme
Court, the Justices will be forced to choose between redressing them and
reading the Framers' concerns out of the Constitution.

The distribution of drug war dividends to law enforcement is but one part
of an antidrug mobilization that has continued, at escalating levels, for
almost thirty years. Despite a succession of failures to "win" the war on
drugs, the government's response has always been simply more of the
same--more money thrown into this war (now $50 billion per year in federal
and state budgets), more arrests (now about 500,000 per year for marijuana
possession alone) and more
prisoners (60 percent of federal prisoners are incarcerated for drug offenses).

This heavy law-enforcement emphasis has never flagged, and cases like Mary
Miller's and Donald Scott's help explain why: Police and prosecutorial
agencies that make drug-law enforcement their highest priority are
extravagantly rewarded for doing so by the forfeiture laws.

For law-enforcement officials, however irrational the drug war may be as
public policy, it remains superbly rational as a bureaucratic strategy.

The authors' research was supported by a grant from the Open Society
Institute's Individual Project Fellowships Program, and is reported in full
in the University of Chicago Law Review (Vol. 65, Winter 1998). Further
assistance was provided by the Abe and Flora Shafer Fund of The Nation
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