The War on Drugs put civil asset forfeiture on steroids

March 25, 2019

Chuck Robinson

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Civil asset forfeiture is one of the unruly children of the “War on Drugs” proclaimed in 1971 by President Richard Nixon.

Civil asset forfeiture is the means by which the government can take seized cash and other property from a suspect without anyone convicted or even charged with a crime and keep it. Truckers are at particular risk, being on the road, where a traffic stop for a minor infraction gives officers opportunity to fish for enough cause to confiscate something.

Back in the day, counter-culture hippies and revolutionary black civil rights activists had Nixon and many others deeply worried. Nixon ran on a law-and-order platform. He called drug abuse “America’s public enemy No. 1” and declared an all-out offensive. The Drug Enforcement Agency came into being in 1973, and the U.S. poured millions of dollars into stopping drug trafficking at the U.S.-Mexico border.

In time, civil asset forfeiture would become a great source of funds for the DEA.

The War on Drugs didn’t start with Nixon. Prohibition was 40 years in the past, but the same moralist tendencies simmered.

I recall as a teenager seeing the anti-drug propaganda film “Reefer Madness” produced by a church group in 1936. Its unintentionally campy production values made it a midnight movie hit in the 1970s. No, I didn’t imbibe then, nor have I since, but I was intrigued by the seemingly promised “wild orgies” mentioned in the film. Didn’t find myself entangled in any of those, either.

Before Nixon seized the phrase, “public enemy No. 1” was used to describe drugs in the film.
The War on Drugs certainly didn’t end with Nixon, either. President Ronald Reagan took up the rallying cry. He adopted a “zero tolerance” stance while his wife banged the drum to “Just say no” to drugs.

Workaround for state restrictions

During Reagan’s tenure, the Republican-controlled Congress enacted the Anti-Drug Abuse Act of 1986, which created new mandatory minimum sentences for drugs, including marijuana. Congress was escalating the War on Drugs.

Just before Reagan took office, Congress passed a law expanding the range of property subject to forfeiture to money and other proceeds traceable to drug transactions. Another law passed in 1986 expanded civil asset forfeiture to cash, bank accounts, vehicles, businesses and real estate.

Perhaps most troubling was when Congress in 1984 decided law enforcement authorities could keep proceeds from civil asset forfeiture.

At the same time, Congress put into place a federal “equitable sharing” program. This is the means used by state and local authorities to circumvent state forfeiture law when it’s more stringent than federal law. States and local authorities turn assets over to the Department of Justice for federal “adoption” of the case and property. When they do that, states and local authorities can get up to 80 percent of the value of the assets. That is usually much higher than states allow.

Recently, I compiled a list of states that had recently passed legislation or were considering it to rein in civil asset forfeiture.

I see a trend in state legislation to require a conviction for forfeiture proceedings

Also, legislation has restricted forfeiture for amounts less than a certain level ranging from $40,000 to $100,000, and allowing federal forfeiture laws to be used on amounts greater than that amount. In those cases, small amounts of cash might be safer from law enforcement forfeiture. Legislation also has addressed reporting requirements and raising the proof of evidence required for forfeiture.

In all cases, however, the back door has been left open for states to kick larger amounts to the federal level and get a hefty slice of the pie.

Utah, for example

In the round up, I did not pick up on what has been going on in Utah. Here is an update from Robert Gehrke of the Salt Lake Tribune. It seems to illustrate the issues of civil asset forfeiture. It all happened behind the scenes, he reports.

As Utah law stands now, proceeds from property seized by law enforcement go into an account and police agencies can apply for a grant from the funds for equipment or operations. State Sen. Todd Weiler, R-Woods Cross, introduced a bill saying law enforcement agencies are not required to contribute to the fund to get a grant. The argument is that forcing agencies to seize property in order to get a grant amounts to a “pay-to-play” incentive.

Weiler’s bill also would have made it more difficult for local or state law enforcement agencies to kick a case to federal authority.

The Utah Attorney General’s Office opposed the bill. Despite that, the Senate passed it unanimously.

In the state House of Representatives, however, law enforcement agencies and their partisans were ready. One police chief said “pay-for-play is a myth.”

Gehrke also quoted someone who raised the War on Drugs specter. The next paragraph is direct from Gehrke’s account.

“With the opioid crisis, this is not the time to make it harder for police officers to do their work,” said Carroll Mays, deputy director of the Metro Narcotics Task Force. “With record numbers of Americans dying of drugs, please don’t hinder our (ability to do our job).”

They had to be told?

In February, the U.S. Supreme Court addressed civil asset forfeiture. It did not prohibit it. The ruling in the case Timbs v. Indiana only said state seizure and forfeiture of property amounted to a fine, and the amount could not be excessive for the crime.

It surprised me that states did not have to adhere to this part of the Bill of Rights before the ruling. How could the Eighth Amendment’s prohibition against “excessive fines” not apply to states? That seems obvious to me, but states had to be told.

I am suspicious of state legislation reining in civil asset forfeiture. It largely seems to be window dressing. They seem to be maneuvering to protect the revenue stream. I welcome measures to require a conviction in order for state or local authorities to take and keep someone’s property. Nevertheless, the back door route around state law is wide open.

Remember, this issue affects truckers. Not long ago we reported on forfeiture proceedings to keep more than $500,000 taken from the cab of a semitrailer. Part of the reason was that the drivers were on their way to Stockton, Calif., which “is known to law enforcement as a source area for high-grade marijuana.”

There was no conviction of a crime.  No charges were brought. They semi was stopped because wheels wandered onto the shoulder, but there was no traffic citation.

I fear truck drivers are particularly at risk when it comes to police seizing and keeping money and other property. The rhetoric of the War on Drugs seems like rationalization for police taking money. I wish the interest in some state legislatures to reform civil asset forfeiture would bubble up to the federal level. We need meaningful reform. There should not be a back door for circumventing state laws.

Chuck Robinson

Chuck Robinson formerly was senior copy editor for a weekly trade publication serving the fresh produce industry. He has served trade publications, horticultural journals and community newspapers for 25 years.

Synchrony Financial