POLICING FOR PROFIT
This article summarizes articles by the authors appearing in The Nation (March 4 issue) and the University of Chicago Law Review (Winter, 1998)
by n 1984, the forfeiture laws were rewrit-ten to funnel "drug related assets" into law en-forcement agencies that seize them. This amend-ment 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; by 1987 the Drug Enforcement Administration was earning its keep, with seizures exceeding its annual budget.
Local law enforcement benefited from an "equitable sharing" provision: henceforth if a municipal police officer discovered marijuana growing in a teenager's room, for example, he could request the federal government to forfeit the family's house and return the lion's share of the sale proceeds to his local police force. In subsequent years, some small town police forces have enhanced their annual budget by a factor of five or more through such drug enforcement activities.
This forfeiture incentive has had two dangerous results. First, these programs have corrupted governmental policy-making and law enforcement. At the Department of Justice, which has deposited $2.7 billion in its Asset Forfeiture Fund over the last five years, a steady stream of memos exhorts 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.' Another directs U.S. Attorneys, "if inadequate forfeiture resources are available . . . divert personnel from other activities."
A report prepared for the Justice Department suggests that multi-jurisdictional drug task forces select their targets in part according to the funding they can produce, 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." Local law enforcement agencies have also turned to asset seizures to compensate for budgetary shortfalls, at the expense of other criminal justice goals.
In the Nation article, we demonstrate that the strange shape of the criminal justice system today-the law enforcement agenda that targets assets rather than crime, the 80% of seizures that are unaccompanied by any criminal prosecution, the plea bargains which favor drug "kingpins" and penalize the "mules" without assets to trade, the "reverse stings" which target drug buyers rather than drug sellers, the overkill in agencies involved in even minor arrests, the massive shift toward federal jurisdiction over local law enforcement-is largely the unplanned byproduct of this economic incentive structure.
Second, the forfeiture laws in particular are producing self-financing, unaccountable law enforcement agencies divorced from any meaningful legislative oversight. The prospect of this kind of 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 an anathema to the framers, who in typically far-sighted fashion 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 which serve to check and balance each other.
There are by now numerous examples of such semi-independent 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." Recent investigations in Florida, Louisiana, Kentucky, New Jersey, Boston, and Washington State have exposed other police agencies similarly deformed by their dependence on drug war financing. Such dire results should prompt reform, particularly because a single measure-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.
The issuance of drug war dividends to law enforcement is but one part of an anti-drug mobilization that has continued, at escalating levels, for almost 30 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), more arrests (now about 500,000 per year for marijuana possession alone), and more prisoners (60% of federal prisoners are incarcerated for drug offenses). This heavy law enforcement emphasis has never flagged, and the forfeiture laws 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.