Abstract: During the 25 years of its existence, the "War on Drugs" has transformed the criminal justice system, to the point where the imperatives of drug law enforcement now drive many of the broader legislative, law enforcement, and corrections policies in counterproductive ways. One significant impetus for this transformation has been the enactment of forfeiture laws which allow law enforcement agencies to keep the lion's share of the drug-related assets they seize. Another has been the federal law enforcement aid program, revised a decade ago to focus on assisting state anti-drug efforts. Collectively these financial incentives have left many law enforcement agencies dependent on drug law enforcement to meet their budgetary requirements, at the expense of alternative goals such as the investigation and prosecution of non-drug crimes, crime prevention strategies, and drug education and treatment. In this article we present a legal and empirical analysis of these laws and their consequences. In so doing, we seek to explain why the drug war continues with such heavy emphasis on law enforcement and incarceration, and show the way to more rational policies.
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I. The Drug War Dividend
II. Conflict of Interest Objections to Self-Financing Police Agencies
A. The Due Process Objection
B. Policy Objections
III. The Accountability Objections to Self-Financing Police Agencies
A. The Separation of Powers Objection
B. Policy Objections
IV. Remedies and Prospects
1/14/97 revision. Copyright 1997 by University of Chicago Law Review, all rights reserved. We presented an earlier version of this article at the June, 1997 meeting of the Law and Society Association, and at faculty workshops at the Boston University School of Law and Suffolk University Law School. We are grateful to all participants, and to the faculties at both institutions who continued to provide thoughtful and valuable advice throughout the research and writing of the article. We also thank Larry Weinberg for research assistance, and Dan Baum, Brenda Grantland, Eric Sterling and Karen Tosh for leading us to much of the obscure but crucial data that appears herein. This research was supported by a grant from the Open Society Institute's Individual Project Fellowships Program.
* Professor, Suffolk University Law School; J.D. Harvard Law School, 1972.
** Assoc. Clinical Prof. of Law, Boston University Law School; J.D. Univ. of Virginia Law School, 1977; LL.M., Georgetown University Law Center, 1980
[W]hat reason can there be, that a free people should be expos'd
to all the insult and abuse_and even the fatal consequences which may arise
from the execution of a writ of assistance, only to put fortunes into private
pockets? . . .[C]an a community be safe with an uncontroul'd power lodg'd
in the hands of such officers...?
- James Otis, Boston Gazette (January 4, 1762)(2)
The Nixon Administration officially declared the "War on Drugs" twenty-five years ago.(3) It has continued, at escalating levels, ever since.(4) Today we annually spend $15 billion in federal funds(5) and $33 billion in state and local funds annually to finance this war.(6) Recent FBI crime statistics report that in one year there were almost 1.5 million drug arrests, of which 500,000 were arrests for marijuana possession.(7) Sixty percent of federal prisoners are incarcerated for drug offenses.(8)
This massive outpouring of money and effort has brought us record numbers of drug seizures, asset forfeitures, and prosecutions.(9) But by more meaningful measures the drug war has been an extraordinary failure. Drugs are more available, at higher purity and lower prices, than they were at the start of the decade.(10) Drug dependence in the inner city(11) and among teenagers(12) has increased substantially. And our drug problem continues to produce massive amounts of crime,(13) $20 billion in annual medical costs,(14) a third of all new HIV infections,(15) prisons filled with non-violent offenders,(16) and the attendant decimation of inner city communities.(17) By all accounts, we have thus far been unable to spend and jail our way out of this problem.
Given these facts, and a general consensus that the war on drugs has been a failure,(18) one might wonder why essentially the same strategies persist year after year, untouched by the wisdom of 25 years of experience. And why do so few public and law enforcement officials speak out against this policy? The answer is that the drug war has achieved a self-perpetuating life of its own because, however irrational it is as public policy, it is fully rational as a political and bureaucratic strategy. Although the political impetus is well recognized -- periodically demonstrated by the public demise of people deemed "soft on drugs," like former Surgeon-General Joycelyn Elders, Judge Harold Baer, and ambassadorial nominee William Weld(19) -- the bureaucratic motive underpinning the drug war is not. This bureaucratic stake is financial, deriving from the lucrative rewards available to police and prosecutorial agencies that make drug law enforcement their highest priority. It operates invisibly, obscured by moral and policy rationales.
Congress conferred these financial benefits to state and local law enforcement directly, through block grants earmarked for drug law enforcement, and indirectly, through forfeiture provisions authorizing law enforcement agencies to seize "drug-related" assets, like a house in which marijuana plants have been grown, and use the proceeds for their budgetary needs. Together these programs have insured continued police enthusiasm for the drug war by offering financial largess unmatched in any other area of law enforcement. But they have also transformed the criminal justice system in two dangerous ways.
First, these programs have distorted governmental policy-making and law enforcement. During the past decade, law enforcement agencies have turned to asset seizures and drug enforcement grants to compensate for budgetary shortfalls, at the expense of other criminal justice goals. We believe the strange shape of the criminal justice system today -- the law enforcement agenda that targets assets rather than crime,(20) the 80% of seizures that are unaccompanied by any criminal prosecution,(21) the plea bargains which favor drug "kingpins" and penalize the "mules" without assets to trade,(22) the "reverse stings" which target drug buyers rather than drug sellers,(23) the overkill in agencies involved in even minor arrests,(24) the massive shift towards federal jurisdiction over local law enforcement(25) -- 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. 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.(26) 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. But thus far the forfeiture industry has enjoyed an astonishing immunity from scrutiny by lawmakers and the courts.(27)
In the following pages, we first describe in more detail how the drug war's financial largess has kept its soldiers in business. We then discuss the destructive impact of this economic regime, marshaling evidence to show that the corruption of law enforcement priorities and wholesale miscarriages of justice can be fairly attributed to the operation of these incentives. Finally in Part IV, we explore potential legal and legislative remedies through which law enforcement may regain its bearings.
Our investigation throughout focuses on the economic underpinnings of current drug law enforcement policy. Drug policy also raises an extraordinarily broad range of moral, health, criminological and other concerns, which we do not discuss except insofar as the financial incentives we describe have interfered with attempts to address them. We take no position here on such pivotal issues as legalization or decriminalization, but hope to speak to abolitionists and prohibitionists alike: all sides should be able to agree that, at a minimum, the law enforcement agenda should not be held hostage to the opportunities for financial self-aggrandizement we describe herein.
I. THE DRUG WAR DIVIDEND
Congress has passed a new crime bill every few years. Throughout the 1980's these laws became especially punitive to drug offenders(28) and increasingly profitable to the law enforcement agencies that pursue them. The latter was accomplished primarily by rewriting existing federal aid and forfeiture laws to specifically promote and finance drug law enforcement. We take each in turn.
Federal aid to drug law enforcement: In 1986 Congress revised the federal aid program, renaming it the Edward Byrne Memorial State and Local Law Enforcement Assistance Program after a New York city police officer who was shot during a drug arrest.(29) Byrne grants replaced the federal block grants previously given to the states by the now-defunct Law
Enforcement Assistance Administration.(30) Unlike the earlier program, Byrne grant recipients are required to use these funds to fight the war on drugs.(31) The Byrne Program is now the primary federal program that funds the state and local war on drugs.
Byrne grants have altered the law enforcement landscape in numerous ways -- most notably in the proliferation of multijurisdictional drug task forces (MJDTFs),(32) now collectively the largest funding category in the federal aid program.(33) Between 1988 and 1991, the number of Byrne-funded task forces almost doubled, to 904 task forces covering 83% of the population,(34) with up to 63 multijurisdictional task forces operating within individual states.(35) MJDTF drug arrests fluctuated between 220,000 and 280,000 annually during this period.(36) (See Figs. 1 and 2 on the following pages.(37))
Forfeiture and asset distribution: Modern drug forfeiture law dates from 1970, when Congress passed the Comprehensive Drug Abuse Prevention and Control Act.(38) That Act included a civil forfeiture provision, 21 U.S.C. sec. 881, authorizing the government to seize and forfeit drugs, drug manufacturing and storage equipment, and conveyances used to transport drugs.(39) This provision was intended to forestall the spread of drugs in a way criminal penalties could not: by striking at its economic roots. When criminal prosecution sends a dealer to jail a subordinate will most probably take his place, but seizing the means of production and other capital may shut down the trafficking business for good. In the 27 years since, the list of properties subject to forfeiture has greatly expanded, and the required connection to illegal drug activity has become ever more remote. Congress amended the forfeiture law to include proceeds traceable to drug transactions in 1978,(40) added real property in 1984(41), and in 1986 promulgated a "substitute assets" law providing that property of an equal value may be forfeited in place of forfeitable assets that are no longer available.(42) Today cash, bank accounts, jewelry, cars, boats, airplanes, businesses, houses and land are all fair game. This wholesale expansion of targets has produced enormous confusion as to what kind of nexus to a drug violation will suffice. The law provides for forfeiture of property which "facilitated" a drug crime(43), but courts have developed no clear criteria for what constitutes facilitation.(44) Some police, prosecutors and judges construe this as a license to proceed on the most tenuous of grounds -- for example, seeking to forfeit a bar for failing to stop drug dealing within,(45) or a house in which the owner's son sold drugs,(46) or cash on which some cocaine residue has been found.(47)
For prosecutors, the expanding reach of the forfeiture law is complemented by the great procedural and financial benefits it offers. Procedurally, two tremendous advantages accrue to the government from an ancient legal fiction that dominates all forfeiture cases -- that the property is guilty and on trial.(48) This means, first, that forfeiture can be used even when there is insufficient evidence to make a criminal case against the defendant, or when the defendant is a fugitive. The government need only seize the assets,(49) and it is then up to the owner to challenge the seizure in a costly and unpromising hearing.(50) Second, as a "civil action" against the property itself(51) (as in United States v. One 1974 Cadillac Eldorado Sedan(52)), few of the constitutional safeguards imposed on criminal prosecutions apply.(53) There is no presumption of innocence, no right to an attorney, and no objection to hearsay.(54) The burden of proof is reversed: once the government establishes probable cause to believe the property is subject to forfeiture, the burden shifts to the property owner to prove by a preponderance of the evidence that the property does not belong to the government.(55) There is no constitutional requirement that the owner have intended or been negligent regarding the illegal use of the property,(56) or that the property owner be prosecuted for the underlying criminal activity prior to action against the property. Forfeiture may occur even if the owner is charged and acquitted.(57) (Of course, given the rapid expansion of forfeitable targets to include homes, money and businesses, often the only "taint" on non-contraband property is its owner's alleged wrongdoing.(58) In such cases forfeiture is hardly distinguishable from punishment without trial -- "a deliberate subterfuge"(59) which has been analogized to Soviet era punishment of political offenders under "non-criminal" laws which existed to deprive such people of their criminal procedural rights.(60)) Given these unfavorable odds it is not surprising that roughly 90% of judicial forfeitures are uncontested.(61)
Congress handed police and prosecutors a powerful tool, but their interest in using it accelerated greatly when Congress enacted two additional amendments to the forfeiture law. One amendment, part of the 1984 bill, allowed federal law enforcement agencies to retain and use the proceeds from asset forfeitures, rather than requiring these assets to be deposited in the Treasury's General Fund.(62) The other initiated the federal "equitable sharing" program, which gave the state and local police agencies the lion's share of seized assets even when federal agents were involved in the arrest.(63) The equitable sharing program also includes a "federal adoption" procedure, whereby state police who turn seized assets over to the Justice Department for "federal forfeiture" receive back up to 80% of the value, to be used exclusively for law enforcement purposes.(64) These amendments have had two rather immediate consequences relevant to our inquiry. First, they have given state and local police an enormous economic stake in the federal forfeiture law. At a time when state government budgets are shrinking, equitable sharing offers a new source of income, limited only by the energy police and prosecutors are willing to put into seizing assets.(65) Second, the amendments have produced a major shift towards federal jurisdiction over local law enforcement, because "federalizing" a forfeiture is now a more profitable course for both state and local criminal justice bureaucracies. For many state and local police departments, federal forfeiture allows the retention of a far larger portion of the assets (up to 80%) than they would receive by proceeding under their own state forfeiture laws, which generally require sharing with other, non-law enforcement state agencies.(66) Federal adoption is also profitable for the U.S. Department of Justice, which receives a 20% share of assets with little if any expenditure of federal investigative or law enforcement resources.(67) Indeed, the Department of Justice promotes federalization by providing larger shares to the state or local agency if it "could have forfeited the asset(s) on its own" but agreed to federal adoption instead.(68) The profit and ease of federal adoption has led to widespread circumvention of stricter state forfeiture laws.(69)
The forfeiture laws were designed to combat drug crime by attacking the economic viability of drug trafficking enterprises. It continues to be billed as the weapon of choice in the Drug War. The Director of the Justice Department's forfeiture unit testified to a Congress subcommittee that "[a]sset forfeiture can be to modern law enforcement what air power is to modern warfare."(70) But in fact the aggressive use of forfeiture laws in the last decade has never produced this intended benefit: the $730 million in 1994 federal forfeitures was surely not enough to significantly stifle a $50 billion drug trade, although more than enough to reward police and government officials for their efforts. (71)
What forfeiture does do well is raise money.(72)
Police and prosecutors argue that 21 U.S.C. 881 enables them to carry out
ordinary law enforcement business and raise money at the same time -- to
do well by doing good.(73) Unfortunately,
the real impact of forfeiture has not been so benign. In practice forfeiture
laws have not simply enhanced the ability of law enforcement to do its
job, but rather have changed the nature of the job itself.(74)
Both the crime prevention and due process goals of our criminal justice
system are compromised when salaries, continued tenure, equipment, modernization,
and budget depend on how much money can be generated by forfeitures.
II. THE CONFLICT
OF INTEREST OBJECTIONS TO SELF-FINANCING
The most intuitively obvious problem presented by the forfeiture and equitable sharing laws is the conflict of interest that exists when law enforcement agencies are authorized to keep the assets they seize. It takes no special sophistication to recognize that this incentive constitutes a compelling invitation to police departments to depart from legitimate law enforcement goals in order to maximize funding for their operations. For example, as detailed below some police departments now prefer to arrest drug buyers rather than dealers because buyers are sure to have seizable cash with them. Although profitable to the agencies involved, this agenda badly undermines crime control because arresting buyers rather than sellers does nothing to reduce the supply of drugs in a community. It also results in the less culpable suffering more severe treatment, the antithesis of a just system based on proportional punishment. These destructive priorities are characteristic of the pervasive distortion of law enforcement policy that flows from targeting assets rather than crime. In section II(B) we argue that no rational crime control program will be possible until Congress repeals the conflict of interest license it has issued to police and prosecutors. First, however, we consider whether this conflict rises to a constitutionally objectionable level which might be remedied through litigation.
A. The Due Process Objection
Impartiality is inseparable from justice.(75) This principle is embedded in the Constitutional due process guarantee, which includes the right to an impartial tribunal in both civil and criminal cases.(76) The Supreme Court has found this right abridged whenever a conflict of interest exists which would "offer a possible temptation to the average man as a judge...not to hold the balance nice, clear and true" between the parties.(77)
Such a conflict obviously exists when the fact-finder has a personal pecuniary interest in the outcome, as when his compensation is contingent on conviction(78) or the issuance of a search warrant.(79) But the Fourteenth Amendment may also disqualify a judge who will receive no direct benefit from the ruling if his department or agency would. Thus in both Tumey v. Ohio(80) and Ward v. Village of Monroeville,(81) the Supreme Court held that the mayor could not constitutionally sit as judge and assess fines to be paid to the village treasury, because his responsibility for town finances gave him a motive to convict and jeopardized his impartiality.(82) The criterion is possible temptation: even a relatively small emolument may suffice,(83) and the temptation need not have actually influenced the decision at all.(84)
These precedents should outlaw such forfeiture statutes as Louisiana's, which authorizes the criminal court to issue a warrant for seizure of the property, order forfeiture, and then allocate forty percent of the proceeds to its own criminal court fund.(85) But the more potentially significant question is whether police and prosecutorial decisions must also satisfy due process standards of impartiality, and on this the constitutional parameters are yet to be fully developed. At this point the Supreme Court has indicated only that (1) the stringent impartiality standard it requires of adjudicatory officials does not apply to prosecuting officials, but (2) neither is the prosecutor free from all conflict of interest restrictions. Some due process limits on law enforcement rewards do exist, but where between these poles they may be found must still be spelled out, and likely will be when litigants focus on the equitable sharing payback law.
What constitutional guidance exists is found primarily in Tumey and a subsequent case, Marshall v. Jerrico.(86) In Tumey, the Court relied on the mayor's pecuniary stake in the fine as reason enough to reverse the conviction, apparently unperturbed by the other shares distributed to the prosecution and police.(87) Without specifically addressing Ohio's statutory scheme, the court allowed that "the Legislature of a state may and often ought to stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the state and the people."(88) But the Court did not directly confront the question whether some law enforcement incentives create an unconstitutional conflict of interest until a half century later, in Marshall v. Jerrico.
Jerrico upheld a section of the Fair Labor Standards Act that allowed a division of the Labor Department to retain the civil penalties it assessed for child labor violations, as compensation for the costs of determining violations and assessing penalties.(89) Jerrico, Inc. was fined $l8,500 by the Regional Administrator, appealed and lost before an Administrative Law Judge, and then sued in Federal District Court on grounds that the reimbursement provisions violated its due process rights by encouraging agency personnel to seek and impose excessive fines. The District Court granted the plaintiff summary judgment, holding that this arrangement created an impermissible risk of bias and noting that
The more appropriate procedure is simple and constitutionally sound: pay all civil money penalty funds directly into the Treasury of the United States. To allow only the Department of Labor to deviate from such a clear procedural alternative, to the detriment of alleged violators, would be to disregard the fundamental tenets of our legal system.(90)However, the Supreme Court rejected Jerrico's claims, finding the Tumey rule inapposite because department officials were performing purely prosecutorial functions.(91) Distinguishing the conflict of interest prohibitions governing a factfinder, who must be and appear impartial, from the less stringent limitations on law enforcement officials, the court held that prosecutors "need not be entirely neutral and detached. In an adversary system, they are necessarily permitted to be zealous in their enforcement of the law."(92) But this was far from a blank check for prosecutorial self-aggrandizement, because the Court simultaneously emphasized that prosecutors too are bound by at least some due process limitations on conflicts of interest:
We do not suggest...that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors. Prosecutors are also public officials; they too must serve the public interest. In appropriate circumstances the Court has made clear that traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which the enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law. Moreover, the decision to enforce -- or not to enforce -- may itself result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately vindicated in an adjudication. A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.(93)In Jerrico the Court found that the constitutional barrier had not been crossed because the statute conferred no personal gain on the Regional Administrator, and the institutional benefit to the prosecuting department (the Employment Standards Administration) was too small to be a factor in decisions regarding whom to prosecute and how much to fine.(94) Analyzing the relevant three year period, the Court noted that the ESA was not at all financially affected by the relatively minimal penalties collected; the national office of the ESA allocated the penalties among the regional offices and other departments, and thus a regional office could not expect that any penalties it assessed would be returned to it; and finally, since any penalties distributed to a regional office were determined in proportion to office expenses rather than the amount collected, a regional office would obtain no benefit by assessing an unjustifiably large penalty.(95) Given this undisputed record, the claim that Sec. 16(e) would bias the decisions of the regional administrator was "too remote and insubstantial to violate the constitutional constraints" on prosecutors.(96) There is no implication here that the Justices would have been equally tolerant of a scheme that, for example, paid over traffic fines to the police officer who issues the citation. Rather, the Court examined three relevant factors -- the degree of institutional financial dependence on the prosecutorial decision, the official's personal stake, and the penalty distribution formula -- and none of them suggested any temptation towards impropriety.
Before applying the Jerrico criteria to the forfeiture case, we should note that the Court's sharp distinction between judicial and prosecutorial standards is controversial, and belies the overwhelmingly dispositive role of discretionary prosecutorial decisions in a system where few cases ever go to trial: the justice of the system depends primarily on the fairness of the law enforcement branch. The Court would have done better to find a due process requirement that law enforcement agencies be untarnished by any actual or perceived temptation towards self-aggrandizement.(97) But instead of applying a bright line rule, Supreme Court doctrine after Tumey and Jerrico construes the constitutional limitation as a matter of degree, in the sense that some minimal rewards might act to "stimulate" law enforcement officials to do their job without distorting or biasing them towards unjust prosecutions or excessive penalties.(98) Whether a prosecutorial payback provision violates the Fourteenth Amendment thus necessarily requires a factual inquiry into the effect of these particular rewards on the agency. To assess the constitutionality of equitable sharing, we must take a much closer look at its operation in practice. What is remarkable about the three empirical factors that led Jerrico to uphold the child labor prosecution is that in the forfeiture case, every one cuts the other way, and to an extreme degree. One could hardly design an incentive system better calculated to bias law enforcement decisions than the present forfeiture laws. Taking the Jerrico factors in order.
Financial dependence: The ESA division of the Labor Department obtained no financial benefit from the penalties it assessed: the penalties collected totaled less than 1% of the ESA's budget, and because more than this amount was returned to the Treasury, they had not increased the ESA's funding at all. By contrast, numerous law enforcement agencies now rely on forfeitures to fund a significant part of their operations. The gross amounts are prodigious: By 1987 the Drug Enforcement Administration was effectively paying for itself, with seizures exceeding its annual budget.(99) Between 1985 and 1991, the Justice Department collected more than 1.5 billion in illegal assets;(100) in the next five years, the Justice Department almost doubled this intake, depositing $2.7 billion in its Asset Forfeiture Fund.(101) It appears that this forfeiture income is sometimes required to operate the Department, which has regularly exhorted its attorneys to make "every effort" to increase "forfeiture production" so as to avoid budget shortfalls.(102) Like concerns motivate state and local officials. A 1991 Justice Department memorandum observed that state and local law enforcement agencies were becoming increasingly dependent upon equitable sharing of forfeiture proceeds.(103) (As of 1994 the Department had transferred almost $1.4 billion in forfeited assets to these agencies.(104)) Similarly, a study of multijurisdictional drug task forces participating in the Byrne grant program found that these task forces had seized over $1 billion in assets between 1988 and 1992,(105) and that many of their commanders " expect to have to rely increasingly on asset forfeitures for future resources."(106)
Personal interest: The degree of the prosecutor's "personal interest, financial or otherwise" also mattered to the court. Although the Justices found that the ESA Regional Administrators had no personal stake in the penalties they assessed, they did note that constitutional violations might have arisen had the arrangement injected a personal stake into the prosecutor's decisions. The revised forfeiture laws have now produced such a case: when a police department relies on a steady stream of forfeiture income to pay for its operations, as many now do, an officer's choice of who and what to target may mean the difference between a paycheck and a pink slip.(107) Anyone who doubts whether job maintenance qualifies as a personal stake should read the sociologist Northcote Parkinson's witty study on the subject.(108) There are carrots as well, including more generous working conditions or the use of seized assets from baseball gloves to automobiles.(109) Some police departments base promotions in part on the officer's success in asset seizures;(110) at least one city ordinance actually gives individual officers a personal share of the forfeiture take.(111)
The funding formula: Finally, in Jerrico the court stressed that the statutory scheme reimbursed regional offices according to their expenses rather than their collections, providing no reason for regional offices to seek unreasonably large penalties. No such restraint exists in the asset retention statutes; the larger the seizure, the higher the reward for each participating office.
The three factors we have just discussed were dispositive in Jerrico because they were strong indicia that prosecutors were unaffected by the negligible financial stake the ESA might have in their penalty assessments. In the forfeiture case the same factors point in the opposite direction, strongly tempting a law enforcement agency to tailor its decisions to enhance institutional funding. Have law enforcement decisions actually been influenced and corrupted by this temptation? To answer this question, we need not merely extrapolate from the Jerrico indicia, or invoke economic models,(112) or rely on conjecture at all. We can instead directly examine the recent history of law enforcement activity. This record shows that the forfeiture reward system has done far more than stimulate zealous enforcement. Rather, it has grossly distorted police and prosecutorial priorities, infecting virtually every phase of the criminal justice system. The consequence is an often counterproductive, sometimes pernicious law enforcement agenda.
At this point we focus only on those corrupted decisions that might be found to abridge the constitutional due process guarantee. We shall assume that this requires proof not only that the prosecution is contaminated by a significant conflict of interest, but also that the defendant or claimant suffered some legally cognizable prejudice as a result -- for example, that she might not have been targeted, or treated as harshly, in the absence of the agencys financial interest.(113)
Consider first police investigations. The shift in law enforcement priorities, from crime control to funding raids, is perhaps best revealed by the advent of the "reverse sting," a now common police tactic that was rarely used before the law began channeling forfeited assets to those who seized them.(114) The reverse sting is an apparently lawful version of police drug dealing in which police pose as dealers and sell drugs to an unwitting buyer. The chief attraction of the reverse sting is that it allows police to seize a buyer's cash rather than a seller's drugs (which have no legal value to the seizing agency).(115) According to one participant in some reverse stings, "This strategy was preferred by every agency and department with which I was associated because it allowed agents to gauge potential profit before investing a great deal of time and effort. [Reverse stings] occurred so regularly that the term reverse became synonymous with the word deal."(116) Whether the suspects were engaged in major or trivial drug activity, and whether the strategy actually placed more drugs on the street, were of little if any import. Even if a sting targeted a drug dealer, the police might defer the operation until the dealer sold some of the drugs to other buyers in order to make the seizure incident to arrest more profitable.(117) Or law enforcement agencies might select their targets according to the funding they could provide rather than the threat they posed to the community. A Justice Department report proposed precisely this approach to multijurisdictional task force commanders, suggesting that as asset seizures become more 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."(118)
A similar motivation may underlie the otherwise baffling policy adopted in 1986 by both the New York City and Washington, D. C. police. Invoking 21 USC 881(a)(4), the policy directed police to seize the cash and cars of persons coming into the city to buy drugs.(119) The consequence of this strategy was that the drugs which would have been purchased continued to circulate freely. Patrick Murphy, formerly the Police Commissioner of New York City, explained the origin of this policy to Congress. Police, he said, have
a financial incentive to impose 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 dept., while seized drugs can only be destroyed.(120)For prosecutors too, funding exigencies have pre-empted other considerations. One Department of Justice manual governing racketeering prosecutions, for example, suggests that prosecution may be contingent on the presence of forfeitable assets, rather than forfeiture being an incident of prosecution.(121) Consequently, prosecutors have become expert at learning about the presence of assets in cases under investigation, assessing their value and condition, and checking for liens on property. One issue that the Supreme Court will eventually have to decide is whether this is the kind of prosecutorial discretion which, in Jerrico's formulation, must not be immune from judicial scrutiny because "the enforcement decisions of an administrator were motivated by improper factors."(122)
Consider also forfeiture's corrupting influence on the disposition of criminal cases. Ironically, as the Drug War was escalating during the 1980's and '90's, major efforts were underway to remove corrupt influences and unjust disparities from criminal sentences. The federal government and many states sought to accomplish this by rewriting their sentencing laws to specify the sentence that fit each crime and the criminal history of each offender.(123) But these sentencing reform laws have been largely undone in the drug area. (124) Forfeiture laws promote unfair, disparate sentences by providing an avenue for affluent drug "kingpins" to buy their freedom. This is one reason why state and federal prisons now confine large numbers of men and women who had relatively minor roles in drug distribution networks, but few of their bosses.(125)
Investigations in several jurisdictions have documented that criminal defendants with the most assets to turn over to the authorities routinely serve shorter prison sentences and sometimes no prison sentence at all. In New Jersey, a defendant facing a "drug kingpin", 25 years-to-life indictment obtained a dismissal of that charge, and parole eligibility in five years on a lesser conviction, by agreeing to forfeit over one million dollars in assets.(126) In Massachusetts, a recent investigation by journalists found that on average "payment of $50,000 in drug profits won a 6.3 year reduction in a sentence for dealers," while agreements to forfeit $10,000 or more bought elimination or reduction of trafficking charges in almost 3/4 of such cases.(127) The Massachusetts prosecutors who were investigated have a compelling financial reason to recalibrate the scales of justice in this way because 12% their budgets are financed through forfeiture income.(128) And the Supreme Court has greatly facilitated this practice by finding no right to a judicial inquiry whether property relinquished pursuant to a guilty plea was properly subject to forfeiture.(129) As Justice Stevens noted in dissent, "it is not unthinkable that a wealthy defendant might bargain for a light sentence by voluntarily 'forfeiting' property to which the Government had no statutory entitlement."(130) But these distorted, disparate plea offers remain untested under the due process right to an impartial prosecutor, and the most hopeful challenge may come from the asset-poor defendants who suffer the most in plea bargaining from the governments conflict of interest.(131)
To illustrate how much the defendant may have at stake in uncorrupted law enforcement, we present a final example: the enlightening and appalling case of Donald Scott. Scott was 61 year old wealthy recluse who owned a 200 acre ranch in Malibu, California adjacent to a large recreational area maintained by the National Park Service. In 1992 the Los Angeles County Sheriff's Department received an informant's 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 Drug Enforcement Administration, the U.S. Forest Service, the California Air National Guard, the U.S. Border Patrol, 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,(132) and despite advice that Scott posed little threat of violence,(133) the LASD dispatched a multi-jurisdictional team of 30 law enforcement officers to conduct a military-style raid. On October 2, 1992 at 8:30 a.m., the officers descended upon the Scott ranch to execute their 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, they shot and killed him. There were no marijuana plants anywhere on the land, and no drugs or paraphernalia in the house.
Following Scott's death, the Ventura County District Attorney's Office conducted a five month investigation of the raid. The 70 page report found that there was no credible evidence of present or past marijuana cultivation on Donald Scott's property.(134) As to the search warrant, the report found that much of the information supporting the warrant was false, that exculpatory surveillance evidence was withheld from the judge, and that the Los Angeles County Sheriff's Department knowingly sought the warrant on legally insufficient information.(135) The search warrant "[b]ecame Donald Scott's death warrant," the report concluded, and Scott was unjustifiably, needlessly killed.(136)
The targeting of Donald Scott, and the massive multijurisdictional police presence, cannot be explained as any kind of crime control strategy. Rather, as the Ventura County District Attorney's report concluded, one purpose of this operation was to garner the proceeds expected from forfeiture of the $5 million ranch. Among the documents distributed to some of the officers at the pre-raid briefing were a property appraisal of Scott's ranch, a parcel map of the ranch with a reference to the sales price of a near-by property, and the statement that if 14 marijuana plants were found then the ranch would be seized.(137) *
Egregious cases like Donald Scott's underscore the difference between the statutory provision upheld in Jerrico and laws which encourage law enforcement agencies to finance themselves through aggressive, potentially violent police actions -- a difference that threatens liberty and even life in ways that no one can mistake for "due process of law." Moreover, for a court to find otherwise would betray one of the central concerns that led to the founding of our constitutional order. Financial incentives promoting police lawlessness and selective enforcement, in the form of the customs writs of assistance, were high on the list of grievances that triggered the American revolution.(138) Writs of assistance authorized customs officers to seize suspected contraband, and retain a share of the proceeds, often a third, for themselves and their informants.(139) From the viewpoint of the Crown, this incentive could help insure that goods landing in American ports were taxed or, if prohibited, confiscated. But for the colonists, it was an outrage that brought with it corrupt officials,(140) lawless seizures,(141) selective enforcement,(142) fabricated evidence,(143) extortionate agreements from subjects who had no effective legal recourse,(144) "and even the fatal consequences which may arise from the execution of a writ of assistance, only to put fortunes into private pockets."(145) From these complaints "the child Independence was born."(146) The same fundamental grievances are now lodged against our present forfeiture laws. What court can read such formative concerns out of the Constitution?
B. Policy Objections
There are many issues in the criminal justice field which set the constitutional rights of suspects against the security of the general population. The Drug War's economic incentive structure is unusual in that it threatens the due process of drug suspects and hinders effective law enforcement at the same time. When police target drug buyers rather than sellers in order to advance their own financial interest, for example, they brazenly ignore the public interest in both just, proportional punishment and drug reduction. Bad policy may not be unconstitutional, but it does demand reform -- in this case, obvious reforms which could be easily legislated if there were the political will to do so.(147)
Imposing this conflict of interest on law enforcement endangers the public welfare in four critical areas. First, encouraging police to target assets undermines drug law enforcement strategies. Nominally forfeiture provides a way to remove contraband from circulation. But when fundraising prospects lead police to defer arrests until after drug sales,(148) when police prefer to target the least culpable offenders,(149) when prosecutors give leniency to those dealers with the largest assets, and when 80% of the people whose assets are seized are never charged,(150) we should suspect that the forfeiture payback provision is having the opposite effect. Virtually all drug enforcement decisions are subject to this economic temptation; heroin distribution may demand more enforcement, for example, but perhaps targeting cocaine dealers would be more profitable.(151) One commentator concluded that "forfeiture is shaping the core goals and policies of the [drug war]. . . .Asset forfeitures have become a legitimate alternative policy goal for law enforcement, . . . an end in themselves."(152)
The forfeiture incentive exerts all the more influence because no clear drug control priorities have ever been formulated which might act as a restraint on single-minded fundraising. Because questioning any drug war campaign can be political suicide, its priorities have been rarely subject to rational public debate. Shrill political demands that everything must be accomplished immediately reduce to a directionless program in which nothing takes precedence. The euphemistic label attached to this abdication is a "zero tolerance policy," formally adopted by National Drug Policy Board on March 21, 1988.(153) This "policy" has authorized virtually any law enforcement activity that has even the most tenuous connection to drug violations -- effectively a license to engage in unlimited asset seizures. Pursuant to it, the Customs Service and the Coast Guard have seized assets regardless of whether the owner was innocent, or whether he possessed merely a de minimis quantity of drugs; in May, 1988, for example, the Coast Guard seized a yacht valued at $2.5 million because it contained 1/10 of an ounce of marijuana.(154) Similarly, the Reagan "Just Say No" campaign equated casual, recreational marijuana use with the most desperate forms of drug addiction, making any and all law enforcement choices acceptable.(155)
Second, by linking police budgets to drug law enforcement, both forfeiture laws and Byrne grants induce police and prosecutors to neglect other, often more pressing crime problems.(156) From the examples in the preceding section, it should be evident that law enforcement officials now make business judgments which can only compete with, if not wholly supplant, their broader law enforcement goals. The Department of Justice has periodically made this practice official policy, as in 1989 when all U.S. Attorneys were directed to divert resources to forfeiture efforts if necessary to meet their commitment "to increase forfeiture production":
If inadequate forfeiture resources are available to achieve the above goals, [U.S. Attorneys] will be expected to divert personnel from other activities or to seek assistance from other U.S. Attorney's offices, the Criminal Division, and the Executive Office for United States Attorneys."(157)The asset retention law compounds already existing incentives that promote an inordinate emphasis on drug enforcement. For example, personal rewards often accrue to those police officers who most zealously enforce the drug laws. Because drug detail generally reaps large numbers of nighttime arrests and daytime court appearances for the arresting officer,(158) it is an avenue to both overtime pay (sometimes equaling base salary) and promotions (which are often linked to arrest rates).(159) This both channels officers into drug enforcement and pits their personal interest against non-criminal, community-based alternatives to arrest.
Police forces desperately pursuing drug offenders are, of course, just the beginning of a spiral that is spinning out of control. To complete the picture, one must also examine the non-drug crimes that go unprevented or uninvestigated, the court hours diverted from other kinds of cases,(160) the rejection of non-criminal approaches to dealing with the drug problem, and much more. Unfortunately, Congress has diligently avoided examining these issues.
This brings us to a third casualty of the funding methods we have described: the subversion of any serious legislative debate on our drug policy, and particularly on how heavily it should rely on law enforcement rather than alternative non-criminal strategies. There is, for example, an enormous body of research to show that treatment is several times more effective in reducing drug consumption than interdiction and other policing.(161) Yet from the beginning national drug policy has overwhelmingly emphasized law enforcement rather than treatment, education, or other non-criminal approaches. Out of approximately $15 billion in federal Drug War funds, approximately 2/3 is dedicated to law enforcement and interdiction.(162)
Meanwhile the slim budgetary allotment for the Substance Abuse and Mental Health Administration's prevention and treatment programs was cut by about 60% in 1996.(163) The forfeiture incentive --- along with Byrne funding, the additional monetary and career rewards that flow to police officers who make drug arrests,(164) and a mushrooming prison-dependent economic sector(165) -- assures the existence of a powerful lobby to maintain this imbalance.(166) As we demonstrate in Part IV, this lobby has been able to soundly defeat the few Congressional efforts to divert some drug law enforcement funding to other uses.
Our law enforcement emphasis has not diminished the drug problem, but it has produced a prison problem of staggering proportions. With a five fold increase in the number of incarcerated drug offenders over the last decade,(167) the Drug War has made the United States the second most incarcerated population in the industrialized world, after Russia.(168) Over ten years we have doubled our prison population to 1.6 million inmates, requiring the addition of 1600 new prison beds each week.(169) None of this has affected the spread of serious addiction among school dropouts, gang members, and the poor, except by siphoning away funds that might be used for drug education, treatment, or the amelioration of the hardships that make drug abuse look attractive.
Fourth and finally, the economic rewards offered by both the forfeiture and Byrne grant laws are so large that some police are tempted to pursue them illegally when necessary.(170) A recent federal civil rights case brought against several task force officers strikingly illustrates the corrosive operation of these incentives. In United State v. Reese,(171) the Court described a task force criminally deformed by its dependence on federal drug money. Existing as a separate unit within the Oakland Housing Authority, the task force operated, in the words of one member, "more or less like a wolfpack", driving up in police vehicles and taking "anything and everything we saw on the street corner."(172) According to the Court, the commander, Daniel Broussard,
regularly exhorted Task Force officers to keep their arrest numbers
up. All the officers were aware that the federal grant that funded their
unit, and on which their jobs depended, was good for only eighteen to twenty-four
months. Broussard warned that they would need statistics to show that the
federal money was well spent and thus to secure another grant. On more
than one occasion, he sent the Task Force out to begin a shift with comments
like, "Lets go out and kick ass," and "[E]verybody goes to jail tonight
for everything, all right?"(173)Oaklands
Drug Task Force is far from unique. Reporters and investigators have documented
numerous other instances of police departments engaging in illegal searches,
threats, and other lawless conduct in search of forfeitable cash. After
viewing videotapes of approximately 1,000 highway stops, two Florida reporters
found that police had used traffic violations as a pretext to confiscate
"tens of thousands of dollars from motorists against whom there [was] no
evidence of wrongdoing," commonly taking the money without filing any criminal
charges.(174) Other police departments
have systematically seized any cash that a suspect cannot show is unrelated
to a drug transaction.(175) A Los Angeles
Sheriffs Department employee reported that deputies routinely planted drugs
and falsified police reports to establish probable cause for cash seizures.(176)
Louisiana police engaged in massive pretextual stops, with the seized money
diverted to police department ski trips and other unauthorized uses.(177)
Many of these police undertook such lawlessness not to provide illicit
personal income, but to further their agencys financial well being. As
we note below, the Drug War has also fostered the more traditional kinds
of police corruption and private graft that particularly thrive in the
surreptitious, informant-laden world of anti-drug operations.(178)
ACCOUNTABILITY OBJECTIONS TO SELF-FINANCING POLICE AGENCIES
A. The Separation of Powers Objection
We turn now to a second fundamental problem with self-financing law enforcement agencies: unaccountability. Agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. As a Justice Department report notes, "one 'big bust' can provide a task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance."(179)
When this happens, the predictable consequence is a degree of police secrecy and independence that brings with it some of the risks civil libertarians associate with the term "police state." We do not mean to imply that police now exercise unlimited power in the United States, but we do believe that the escalating presence of this new kind of police agency will prove increasingly dangerous to our nation's liberty if unchecked. The longer we ignore this problem, the more entrenched and intractable it will become.
As with the conflict of interest problem in the preceding section, police unaccountability invokes both constitutional and policy objections. We explore the latter concerns in Part II(B). In this section we argue that independent, self-financing law enforcement agencies violate both the appropriations clause and the separation of powers framework that the clause was designed to support, as follows.
Under Art. I, sec. 9, cl. 7, Congress is vested with exclusive appropriations power.(180) Along with supporting statutes -- including the Miscellaneous Receipts Act (which requires all funds collected to be deposited in the public treasury, subject to exceptions(181)), the Anti-Deficiency Act (which bars a government employee from authorizing or incurring an obligation without a Congressional appropriation(182)), and the prohibition against augmentation (which bars an agency from exceeding the amount appropriated with third party funding(183)) -- the Appropriations Clause assures that government income cannot be spent until a specific Congressional appropriation releases it.(184)
By contrast, under 28 U.S.C. 881(e)(2)(B) money seized by a federal agency is deposited in the Department of Justice's Asset Forfeiture Fund, where it is then available to the Department and other federal agencies for drug law enforcement and, in some cases, funding prisons.(185) This arrangement bypasses the Treasury, leaving the Justice Department free to determine the contours of its own budget. The Justice Department, the DEA and other federal law enforcement agencies have essentially been given the freedom to fund themselves in whatever amount their agents can legally seize. The constitutional questions are whether this kind of blank check comports with section 9 and, more broadly, the constitutional scheme of separate powers which serve to check and balance each other.
The complication is that this blank check was issued by Congress, and in theory it can terminate the privilege at any time. This generates two alternative possible interpretations: sec. 881 might be deemed either an exercise of the Congressional appropriations power,(186) or it might be considered an unconstitutional transfer of this power to the executive branch. Obviously executive agencies must exercise legislatively delegated power, but just as obviously there must be limits of degree or the organizing principle of the constitutional structure, the separation of powers, could be lawfully destroyed.(187)
In theory the non-delegation doctrine is designed to discern this limit. The doctrine recognizes that legislative delegations are sometimes necessary because administrative agencies are better able to provide expertise, or the expeditious and flexible responses which may be required to adequately regulate an area. (188) But to insure that legislative power remains with the Congress, and that lawmaking does not devolve into the promulgation of ad hoc rules by non-elected administrators, the doctrine requires that agency action be tethered to the legislature's defined ends.(189) To accomplish this, a statute delegating Congressional power must provide "intelligible principles" sufficient to channel agency discretion and provide a basis for judicial review of the exercise of that discretion.(190) In the 1930's, the Supreme Court struck down a series of legislative delegations unaccompanied by such guiding standards.(191) But although the Supreme Court subsequently invoked the doctrine, and sometimes construed statutory delegations narrowly in order to comply with its requirements,(192) the Court did not again find a delegation of legislative power unconstitutional for almost half a century. Scholars came to regard the idea of an unconstitutional legislative delegation as something of an oxymoron, but in the 1980's and 90's the non-delegation doctrine has been showing new signs of life. In the "Benzene case,"(193) an occupational health and safety standard promulgated by the Secretary of Labor was struck down as exceeding the executives lawfully delegated authority.(194) Two years later in INS v. Chadha the Court overturned a delegation of legislative power to one House, finding it offended both the presentment clause and the bicameral structure of Article I.(195) In 1995, the Eighth Circuit applied the non-delegation doctrine to overturn a statute authorizing the Secretary of Interior to acquire land in trust for Indian tribes; it found that the standardless delegation created "an agency fiefdom whose boundaries were never established by Congress...It is hard to imagine a program more at odds with separation of powers principles."(196) This past April the U.S. District Court for the District of Columbia declared the Line Item Veto Act unconstitutional because Congress had ceded non-delegable, basic legislative functions to the President.(197) A divided Supreme Court reversed this decision three months later on grounds that the President had yet to exercise his first line-item veto, and therefore the plaintiffs had not yet suffered any injury providing standing to sue.(198) The Court's ultimate decision on the merits, briefly delayed but inevitable, will provide at least some clues to its present thinking on the non-delegation issue. At this point it appears clear that the pendulum is gaining momentum in this new direction as Justices Rehnquist and Scalia,(199) along with numerous constitutional scholars,(200) argue for a more vigorous application of the non-delegation doctrine.
If some delegations of legislative power are constitutionally suspect, giving law enforcement agencies the opportunity to set the size of their own budgets through police seizures must be one of them. By issuing this blank check Congress has alienated the vital legislative function assigned to it by the Appropriations Clause: specifying the size and nature of the government's activities. To see this, one must recognize that an appropriation is not simply a procedural mechanism by which funds are released, but a substantive determination by the legislature of the relative worth of the program it funds. This understanding of the appropriations process, as a budgetary mechanism by which Congress shapes the activities of the federal government, has prevailed from the Constitution's inception to the present day.(201) To constitutional scholar Kate Stith, one consequence is that the appropriations function imposes
an obligation on Congress itself. Congress has not only the power but also the duty to exercise legislative control over federal expenditures...In determining whether a grant of spending authority is a constitutional appropriation...[w]hat matters is whether Congress in fact determines how much funding for a government activity is "appropriate."(202)This is precisely what Congress did not do when it enabled law enforcement agencies to fund themselves with whatever assets they might lawfully seize. As former Attorney-General Richard Thornburgh has noted, "its 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."(203) In other words, law enforcement activities and resources are now unconstrained by any legislative determination of an appropriate budgetary level. This wholly thwarts sec. 9's constitutional function as defined by the Supreme Court, which is "to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents..."(204)
Our claim here is not that the Appropriations Clause requires Congress to specify a definite budgetary figure for executive agencies, or do so yearly. As Stith argues, Congress may permanently authorize the expenditure of an indefinite sum to be fixed by later events(205) (such as the sum necessary to finance the national debt,(206) entitlement obligations,(207) or contract obligations incurred by an agency pursuant to Congressional authorization(208)) so long as it reflects a decision by Congress that the formula will result in the appropriate degree of funding and, therefore, agency activity.(209) This could be the case even if Congress has authorized an agency to collect fees and utilize them for its operating budget, as when it decides a government service should be provided in proportion to the market's demand for it. (Consumer-generated revenue retained by the Postal Service, Amtrack, the Park Service and the SEC are examples).(210) There is a constitutional chasm, however, between a Congressional appropriation deliberately designed to size an agency according to market demand, and a law effectively allowing a law enforcement agency to decide for itself what its size and resources will be. In the latter case, Congress has shed its obligation to set the purposes and amounts of government expenditures, transferring this legislative policy decision to self-interested administrators in the executive branch.(211) That the executive branch has used the asset retention law to supplement its federal law enforcement budget by billions of dollars,(212) in an area substantially immune to Congressional oversight except through exercise of the appropriations power,(213) underscores the importance of returning this power to the Congress.
Measured against the kinds of Congressional delegations of power which have been upheld, the asset retention scheme is extreme, and outside any constitutional rationale. None of the reasons that courts have found to justify a delegation(214) pertain to a law allowing the Justice Department to write its own budget, which is no different in any of these respects than the other appropriations Congress enacts without undue difficulty. And even were a delegation of the appropriations function warranted, here it is unaccompanied by any "intelligible principles" to guide agency discretion, or any other means of legislative control over the size and scope of the agency's budget: the asset retention law is devoid of any spending ceilings, time limits, funding formulas, meaningful reporting requirements, or Congressional review procedures.(215)
These comparisons, however, are largely beside the point. An inquiry
focusing on whether this delegation is "excessive" or the standards "inadequate"
is misdirected when Congress has transferred a basic legislative function
that cannot be delegated at all. As the courts have recognized,
Congress cannot delegate its basic legislative powers because doing so
would dismantle the essential constitutional structure of balanced, co-equal
branches.(216) In this case, by ceding
to the executive part of its "unquestionably exclusive" appropriations
power,(217) Congress has abandoned what
Corwin described as "the most important single curb in the Constitution
on Presidential power."(218) The prospect
of a self-financing law enforcement branch, largely able to set its own
agenda and accountable to no one, presents the kind of dangers one of the
framers, George Mason, must have had in mind when he warned that "the purse
and the sword ought never to get into the same hands, whether legislative
Suppose we are wrong, and the Appropriations Clause poses no constitutional obstacle to law enforcement funding itself through self-help. Should Congress continue to authorize potentially independent law enforcement agencies that need not justify their activities to the taxpayers, their elected representatives or any budgetary authority? To us it is self-evident that agencies privileged to arrest, seize property and use even deadly force pose special risks that warrant greater safeguards and scrutiny, not less. For this reason, the forfeiture self-funding mechanism poses a double threat: the risks of abuse that flow from this financial incentive are multiplied because no one is watching.
We need not reiterate here the kinds of abuses and policy problems discussed in Part I. It is useful, however, to document the remarkable degree of unaccountability drug law enforcement now enjoys. The asset retention law did not create the this problem, or the uncontrolled agencies and rogue officers that are endemic to drug law enforcement. But it did add a great deal of fuel to the fire. To illustrate this, we detail some of the activities of the multijurisdictional drug task forces that have proliferated in the past decade. They reveal that while the forfeiture and drug prohibition laws have not solved America's drug problem, enforcing them has sown a significant police problem.
Most multijurisdictional task forces are offspring of the Byrne program, but once created they may achieve an independent life of their own. The block grant concept minimizes Congressional oversight,(220) and federal participation in the Byrne-funded task forces is uncommon.(221) In theory, a multijurisdictional drug task force is tied to state budgetary allocations and oversight, as the law requires states to match the federal grant with 25% state funding.(222) But states may satisfy this requirement with forfeiture money seized by the task force,(223) thereby eliminating any need for the task force to justify its activities to a state or local authority. Indeed, if the forfeiture intake is high enough, federal Byrne grant money can also be phased out, and the task force may become a self-financing, self-perpetuating and independent entity.(224) Between 1988 and 1992, Byrne-grant funded multijurisdictional task forces seized over $1 billion in assets.(225)
Multijurisdictional drug task forces may elude meaningful oversight for two additional reasons. First, they are tied to no local constituency. The combination of state, local and possibly federal agencies divides responsibility, encourages buck passing and leaves no particular elected government in control. It also promotes jurisdictional game playing: if local police do not like their state's asset distribution scheme, or if state law would bar a seizure, federal involvement allows them to nullify the state's efforts to regulate their activity.(226) Second, drug task forces are engaged in the enforcement of so called victimless crimes, where there is no aggrieved individual to inform the police what happened. Consequently, task forces must operate surreptitiously at the margins of legitimate activity, utilizing undercover police, spies, informants, stings & entrapment. Such secret and deceptive activities further complicate any effort to make task forces accountable, while simultaneously inviting corruption.
How have task forces exercised their freedom? Of course, one obstacle to answering this question is that the very unaccountability of the task forces makes it difficult to monitor what they do.(227) Their actual operations are inevitably murky. The best, though flawed, evidence we have comes from the task force commanders themselves, via a nationwide survey conducted in 1993.(228) Prefaced with a disclaimer that "little is known about the range of tactics being employed by task forces, how frequently they are used, or how often task forces change their tactical approaches to enforcement,"(229) the survey nevertheless conveyed some rudimentary knowledge of task force activities. It found that tactics commonly used include buy-busts, reverse stings, street sweeps, undercover operations and confidential informants.(230) Additionally, slightly over 30% of task force commanders said they were using novel tactics, such as:
"enrolling youthful-looking officers to perform undercover work in high schools, using college students as operatives in universities . . . and placing undercover officers in jail with known drug users and dealers . . .
"[targeting] public events such as sporting matches and concerns to identify and arrest drug offenders . . . .
"operating hotel/motel programs where narcotics officers interact regularly with hotel/motel personnel to detect drug activity and identify suspects . . .
"[operating] business fronts, often in high drug activity areas, to purchase drugs and identify drug dealers. Fronts include a travel agency, gamerooms, pool halls, a car dealership, bars, and a chemical company . . . .
"[establishing] drug hotlines with toll free, 24 hour numbers so citizens can call in anonymous tips on drug dealers and drug activity . . . Some pay rewards for useable information . . .
"The few task force commanders who reported intercepting suspects garbage indicated they thought these efforts were quite successful in producing evidence leading to search warrants . . . .[Less frequently reported tactics included] trading food stamps for drugs enabling MDTFs to prosecute through the federal system."(231)With little oversight and a lot of money, task forces might be expected to develop just such aggressively unconventional techniques to prosecute the drug war. Yet despite these efforts, and the attendant prodigious seizures of assets and drugs (primarily cannabis(232)), the five year review concluded that "[i]t is not clear...whether task forces have been an effective deterrent to either the street- or mid-level dealers."(233)
Not surprisingly, the commanders' survey did not reveal any management or corruption problems. But it is increasingly apparent that task forces are plagued by these problems. One example came to light in 1996, when almost $66,000 was discovered secreted in the former headquarters of the Western Area Narcotics Task Force (WANT) in Paducah, Kentucky.(234) An inquiry followed to determine where the money came from and figure out what to do with it.(235) Investigators learned that the task force had seized large amounts of money which it then used for whatever purposes it wished, unconstrained by audits, reporting requirements or its mission.(236) This problem is endemic to forfeiture beneficiaries, from the Justice Department on down.(237)
The investigation has shed light on the routine operations of this task force, and probably many others as well. Both seizures and expenditures were largely lawless. Like other task forces,(238) WANT made asset seizures a priority, and mandated expected forfeiture growth rates.(239) But WANT met its quotas with much more zeal than care. The police chief estimated that 60% of the money found in WANT headquarters will be returned to the owners because it was not properly seized.(240) Often the seizures had no nexus to any drug transaction. Arrests were delayed for as long as weeks and months, at which point the police took whatever they found on or near the defendant at the time -- even though there was no connection between the seized property and the now distant drug transaction for which they were being arrested.(241) Some seizures were as small as eight cents.(242) Another seizure of 93 cents showed "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."(243)
The subsequent handling of seized assets was equally lawless. WANT refused to deposit money into a special account through the city's Finance Department. It maintained no system to record seizures, identify particular assets seized with its owner, or indicate whether it had been forfeited.(244) Kentucky's asset distribution formula was disregarded,(245) and cash was retained by the task force in vaults, boxes, bags, lockers and envelopes. One can only speculate on how the money was used, but earlier reports had criticized WANT for improperly diverting its grant money to investigate non-drug activity and cover cost overruns,(246) and diverting personnel and equipment to surveil elected officials and private citizens for what looked like vindictive reasons.(247)
The discovery of secreted cash provoked a major media scandal in Kentucky, but despite the predictions of some task force members that WANT's history would mark it for termination, WANT survived, changed its name, and prospered. Its 1996 federal grant was increased by almost $100,000 over the previous year, to $320,000, with local agencies contributing an additional $150,000.(248) Under new direction and with an increased staff and budget, the re-christened Jackson Purchase Area Drug Task Force is ready to resume fighting the war on drugs. Paducah's mayor remarked, "They gave us all we asked for...I don't know exactly what caused it to happen that way...I think we will see new horizons open for the task force, larger scale operations."(249)
The new forfeiture laws have promoted these police abuses and, by
abandoning budgetary oversight, helped insulate them from scrutiny. Drug
law enforcement does not need these additional problems. It is already
plagued by a higher degree of lawlessness and corruption than any other
area of law enforcement.(250) Its reliance
on informants and undercover work place officers in intimate contact with
criminals, money and drugs, while simultaneously shielding their activities
from public view. For dishonest officers these circumstances are tantamount
to a license to steal, deal drugs, plant evidence, or perjure themselves
with impunity.(251) Defendants are unlikely
to benefit from complaining about police theft of their drugs or money,
and otherwise honest officers who learn of police illegality confront intense
institutional pressures not to report fellow officers.(252)
It may be that such problems are intractable, but there is no reason for
state and federal governments to exacerbate them by relinquishing whatever
controls and budgetary oversight they possess.
The logic of Supreme Court decisions leads easily to the conclusion that self-financing, potentially independent law enforcement agencies are constitutionally objectionable, on both due process and separation of powers grounds. But in each case the Supreme Court would have to take a step into territory that it has left relatively unexplored. Whether the present Supreme Court would do so is speculation at this point. Although most forfeiture law reform challenges have failed, the Court has recognized that forfeiture "can be devastating when used unjustly"(253) and that "it makes sense to scrutinize governmental action more closely when the state stands to benefit."(254) Some of the justices are committed to strengthening property rights,(255) or restricting legislative delegations to the executive(256) -- legal values entirely at odds with the present forfeiture laws. Critics of the present system also may be heartened by the increasingly vocal concern expressed by observers across the political spectrum -- from the ACLU(257) to Justice Thomas,(258) and including the former Associate Director of the Justice Department's Asset Forfeiture Office(259) -- that forfeiture laws prompt some police and prosecutors to target assets rather than crime.
If the Supreme Court is unresponsive to constitutional claims regarding asset retention, there are other, less direct litigative strategies to limit the abusive application of Sec. 881. A significant 1993 Supreme Court decision, Austin v. United States, (260) has the potential to do so, although whether this potential will be realized is not yet clear. In Austin, the Court held unanimously that civil forfeitures are subject to the Eighth Amendment's prohibition on excessive fines. This is an important limitation because on its face, sec. 881 would seem to allow forfeiture of any property, no matter how valuable, if it could be linked to even a minor drug violation.(261) Civil forfeiture formerly was thought not to implicate the excessive fines provision because it was labelled civil. In Austin, however, the Court found that forfeiture constitutes punishment regardless of whether it is considered civil or criminal, and therefore is subject to the Eighth Amendment.(262) Presumably the Austin holding will now provide recourse for a family whose home was seized because a teenage son had sold "nickel bags" in his bedroom. The Supreme Court did not announce a test of excessiveness, however, leaving that task to lower courts. Which test ultimately prevails will determine whether the Eighth Amendment provides a meaningful constraint.(263)
Other more speculative litigative strategies are beyond the scope of this article. We merely note that as forfeiture law and constitutional doctrine continue to develop, possible challenges may be grounded in the ethical constraints that govern prosecutors(264) or doctinal limitations on "outrageous governmental conduct"(265); or in the Supreme Courts emerging doctrines designed to protect states rights against national power. Given the Supreme Courts rapidly increasing interest in the latter issue, there may come a time when the adoptive forfeiture law -- which permits local police departments to combine with the federal government in order to circumvent their own state forfeiture laws -- is ripe for effective challenge on federalism grounds.(266)
Legislative reform efforts should also be pressed, especially because it appears highly likely that the 105th Congress will enact some measure of forfeiture reform in the coming year.(267) Within Congress, Representatives as diverse as Hyde, Conyers, and Frank united in support of one bill that would institute some badly needed due process protections for persons whose property is seized. Based on proposals Congressman Hyde has been introducing since 1993, this bill would make the forfeiture laws fairer by strengthening the innocent owner defense, shifting the burden of proof, and removing procedural obstacles to contesting forfeiture in court.(268) Outside Congress, a broad-based coalition supports these procedural changes, including the National Association of Criminal Defense Lawyers, the American Bar Association, the American Civil Liberties Union, the Cato Institute, and even, to some extent, the Justice Department; but the Hudge Bill has lost the support of many forfeiture critics because its most recent incarnation added provbisions that would greatly expand the reach of forfeiture law. (269)
Moreover, pending forfeiture reform bills do not include any measures to rectify equitable sharing and other asset distribution provisions, or the conflict of interest and accountability problems that result, largely because of the continued, vigorous opposition of law enforcement.(270) Congressman Hyde has omitted asset allocation reform from his bill despite its importance because, he says, "the financial considerations involved in the present federal adoption system mean unyielding opposition from law enforcement officials at all levels to any change in the law...."(271) Representative Hyde's reluctance reflects his Congressional experience. On the few occasions when Congress considered laws that would reduce the Drug War income stream, law enforcement wielded its abundant political power to soundly dispose of the threat.
The first such case occurred in 1988, after Congress passed a law requiring that Justice Department transfers of forfeited assets to a state be allocated according to the state forfeiture law's asset distribution formula. This amendment was designed to prevent local agencies from conspiring with the Justice Department to circumvent state forfeiture laws, which often earmark at least some of the assets for purposes other than law enforcement. By 1988, many police officials had learned that they could retain a larger percentage (at that time, 85%) of the assets by "federalizing" their seizures through Justice Department adoption and bypassing their own state's law. Congress responded by eliminating this option to escape state requirements,(272) but its reform was short-lived. Under law enforcement pressure, Congress repealed the amendment before it could take effect. In its place, Congress substituted language requiring the Attorney General to "encourage further cooperation between the recipient State or local agency and Federal law enforcement agencies"(273), even though it is precisely this cooperation that is nullifying the state forfeiture distribution laws. A second, subsequent attempt also "went nowhere," according to its sponsor, "because law enforcement rallied and convinced everybody they needed those cuts of the pie."(274)
Law enforcement rallied again in 1994 and 1995, when Congress considered a Clinton Administration proposal to eliminate Byrne grants from the 1995 budget and substitute the funding of 100,000 additional police positions. Law enforcement agencies greatly preferred the Byrne program, and launched a well organized campaign to prevent the Byrne grant cut.(275) Byrne grant money can be used to make more money through asset forfeiture, which makes law enforcement resistant to proposals which would kill the golden goose by diverting drug war money to other law enforcement uses. Additionally, many existing Byrne-funded drug enforcement jobs were at stake, as the New Jersey Attorney General testified.(276) In the end, the law enforcement lobby succeeded in obtaining full funding of both the Clinton police jobs bill and the Byrne grant program. It even persuaded Congress to amend the program to allow continued funding of individual task forces beyond the 48 month limit Congress had earlier imposed to assure the grants would serve as seed money only.
This year the Justice Department has again circled the wagons around its Asset Forfeiture Fund, this time lobbying against a Congressional proposal to appoint counsel for indigent claimants with money from the Fund.(277)
Congressman Hyde has concluded that at this point no legislation can prevail "that will take hundreds of millions -- indeed, billions -- of dollars away from the Justice Department and state and local agencies -- away from the war on drugs."(278) Nevertheless, 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 most obvious federal reform, and one that would cure both the conflict of interest and accountability hazards of the present system, would require forfeited assets to be deposited into the Treasury's general fund. This one measure would restore Congressional budgetary oversight, and remove the incentive for police departments to distort their agendas for budgetary reasons. An alternative, identical in effect, would require that a law enforcement agency debit the value of any forfeited assets it retains from the budget it receives through Congressional appropriation.
If Congress cannot or will not enact these fundamental reforms, there are lesser but crucial steps it might take to ameliorate the particularly destructive impact of the adoption procedure. Adoption serves to provide police with a means of manipulative forum shopping without furthering any other, more legitimate purpose. Although we have seen how powerful the opposition can be, Congress should revisit this adoption law and either (1) repeal it, or (2) amend it to require that money given back to the states after an adoptive forfeiture be allocated according to state forfeiture law.(279) A third alternative would prohibit the Justice Department from adopting a state forfeiture until a state court considers whether circumstances exist that justify bypassing the state forfeiture law.
Many state forfeiture laws also promote self-aggrandizing police practices and should be reformed. As detailed in the Table of State Asset Distribution Requirements (see Appendix), very few states replicate federal law in channeling virtually all forfeited assets to law enforcement.(280) But those that do, and those that provide law enforcement with a direct and substantial share of the assets they seize, promote the abuses we have discussed. One leading reform organization, the National Conference of Commissioners on Uniform State Laws, has produced a model forfeiture act for states to consider. Its 1994 Uniform Controlled Substances Act (UCSA) mandates that forfeitures proceeds be deposited in the state Treasury's general operating fund and subject to ordinary appropriation requirements because "....earmarking funds [for law enforcement] risks skewing enforcement and prosecutorial priorities..."(281) During three years of debate leading to this provision, Commissioners noted the "abuses. . .arising because millions and millions of dollars are going to people who may or may not be responsible and certainly are not accountable,"(282) and the danger of "revolving funds where [expenditures do not] receive the review of the elected representatives of the people."(283) When prosecutors on the Commission were unable to block inclusion of this provision, they resigned and formed a separate organization to draft their own model forfeiture statute.(284)
No state law reform can be effective, however, so long as federal adoption continues to provide an escape route from state requirements. In proposing that state forfeitures be directed into the general fund, the Conference of Commissioners noted that without concurrent federal law reform "all forfeitures will go under federal law."(285)
Can these reforms be achieved? In proposing the above reforms, we
do not underestimate the enormous obstacles to restructuring the asset
distribution scheme, however obvious its destructive impact. Success will
come, if at all, when the critics of self-financed police forces are able
to focus public attention on the abuses and dangers that have thus far
escaped sustained scrutiny.
When Congress fundamentally restructured the forfeiture laws by allowing agencies to keep most of the assets they seize, it did so without considering the very substantial costs of these amendments to both the public welfare and the justice system. Now, more than a decade later, Congress can draw on an extensive and disturbing history to reassess the wisdom of these laws. This history is neither subtle nor ambiguous. Together with the narrow drug enforcement focus of the revised federal law enforcement aid program, the asset retention law has wrought a dramatic shift in police motivation, towards practices which seriously undermine rational law enforcement efforts. As we have seen, many police agencies choose law enforcement strategies that can take fullest advantage of federal forfeiture laws, circumvent their own state forfeiture laws, and maximize property seizures, reducing fairness and crime control issues to an afterthought. Even the alleged mission of the Drug War may become secondary; failed policies are immune to reform because they sustain and profit the law enforcement agencies enlisted in this war.
Police abuses and warped law enforcement policy are only one half of this disturbing story. We have also argued that police self-financing raises serious accountability concerns, and threatens to establish a sector of permanent, independent and self-aggrandizing police forces. This might sound promising to Colonel North or General Pinochet, but it should not be mistaken for a legitimate organ in a democracy.
The institutional mechanisms we have explored are but one part of an anti-drug mobilization that continues to have profound effects on the liberties and well-being of our people. We sink more deeply into this war year by year, failing to adequately examine or comprehend the choices we are making.(286) Today commentators urge that we close the "revolving prison doors", unaware that we already incarcerate far more people for longer time than almost every other industrialized country.(287) Our politicians speak casually of enlisting the military, the National Guard and the CIA to keep drugs away from the Americans who seek them,(288) while from the other direction Mayor Guiliani stations New York drug police in the Dominican Republic.(289) We routinely deploy numerous federal agencies, and massive numbers of federal and state agents, in military-style raids against low level drug dealers.(290)
All of these changes, mostly unimaginable a generation ago, are largely the products of 25 years of trying (and failing) to "win" the War on Drugs. The first step towards recovery, which cannot come too soon, is to look at what we have done to ourselves, and what kind of institutions we have built, on the way to a "drug-free" society.
1. Justice Research and Statistics Association, Multijurisdictional Drug Control Task Forces: A Five Year Review, 1988-1992 9 (Oct., 1993).
2. "Article, probably by James Otis, in the Boston Gazette for 4 January 1762," reprinted in M. H. Smith, The Writs of Assistance, App. M at 562, 565-566.
3. In 1973, the Administration created the Drug Enforcement Administration to prosecute its "declared[,] all-out, global war on the drug menace." Message from the President of the United States Transmitting Reorganization Plan No. 2 of 1973, Establishing a Drug Enforcement Administration, H.R. Doc. No. 69, 93rd Cong., 1st Sess. 3 (March 28, 1993).
4. President Reagan reaffirmed his administration's "unshakable commitment to do what was necessary to end the drug menace." President's Message, 18 Weekly Comp. Pres.Doc. 11311, 1313-1314 (Oct 14, 1982). Later, President Bush appointed a drug "czar," William Bennett, who among other things sought the death penalty for those who sell drugs. Philip Shenon, Administration Offers a Tough New Drug Bill, N.Y. Times, May 17, 1990, at A21. The Bush administration also contributed ever more militant rhetoric and increased federal budgets to the war effort. Its 1991, $10.4 billion drug war budget (of which 75% was earmarked for drug law enforcement) constituted a 62% increase over the 1989 budget, and a ten-fold increase over 1985's. John Powell & Eileen Hershenov, Hostage to the Drug War: The National Purse, The Constitution, and the Black Community, 24 U. Rev. 557, 567 (1991). The Clinton Administration in turn has increased the antidrug budget by 25%. Joshua Shenk, "The Phony Drug War", The Nation, Sep. 23/96, at 11-12. During its first term the number of marijuana-related arrests increased by 43%, and more Americans are in prison for such offenses than ever before. Eric Schlosser, "More Reefer Madness", Atlantic Monthly, April 1, 1997, at ---. The Clinton Administration has also proposed conditioning teenage drivers' licenses, parole, and welfare payments on mandatory drug tests, see Joshua Shenk, "Baring Teeth in the Drug War," N.Y. Times, Oct. 30, 1996, at A21, and promised federal intervention to effectively nullify the "medical marijuana" initiatives passed by the voters in California and Arizona. "Doctors Given Federal Threat on Marijuana," New York Times, Dec. 31, 1996, Sec. A p. 1 (reporting Clinton Administration plans to revoke DEA registrations of physicians who recommend or prescribe "medical marijuana", including exclusion from participation in the Medicare and Medicaid Programs).
5. The fiscal 1997 federal budget allocated $15.3 billion to the drug war, $2 billion higher than the 1995 budget. Drug Policy Surges as a Campaign Issue , N.Y. Times, Sep. 17, 1996, at A1, A18. The comparable figures were $4.7 billion in 1988, and $1 billion in 1980, as reported respectively in Joshua W. Shenk, "Baring Teeth in the Drug War," N.Y. Times, Oct. 30, 1996, at A21; T. R. Reid, A New Assault Planned Against Formidable Foe: Victories are Elusive in U.S. War On Drugs, Washington Post, Aug. 10, 1987, at A1.
6. Barry McCaffrey, Director, Office of National Drug Control Policy, Fight Drugs as You Would a Disease, Chicago Tribune, Mar. 31, 1996, at C18.
7. The FBI reports that in 1995 there were 1,476,100 arrests for drug abuse violations, 41% higher than in 1991 and 65% higher than in 1986. Arrests for marijuana possession totaled 34.1% of these arrests, or over 503,000 -- more than the combined total number of arrest for murder, manslaughter, robbery, arson, vagrancy, rape, and all sex offenses including prostitution. Crime in the United States. 1995 FBI Office of Uniform Crime Reports 207-08 (1996).
8. Marc Mauer and Tracy Huling, "Young Black Americans and the Criminal Justice System: Five Years Later" 11 (The Sentencing Project, Oct. 1995)(drug offenders accounted in 1993 for 60.8% of federal prisoners and 22.5% of state prisoners). Regarding the escalating imprisonment rates, see fn ---.
9. Federal drug prosecutions rose sharply from 1980 to 1992 before reaching a plateau. In 1981, when President Reagan took office, there were 8,775 federal drug prosecutions. The Bush and Clinton administrations have each averaged just under 26,000 drug prosecutions a year, with the number rising to 28,585 in the election year of 1992. Boston Globe, Drug Prosecution Said to Level Off, Oct. 20, 1996 at A16 (citing Transactional Records Access Clearinghouse, Syracuse University). Regarding increased seizure and forfeiture rates, see pp. ---.
10. In New York City in 1993, an average milligram of heroin was one third the 1979 price -- and ten times the purity. Senate Judiciary Committee, (Federal News Service, Feb. 14, 1995) (testimony of Thomas A. Constantine, administrator, DEA) (66 percent pure compared with 6 percent, and $.53/milligram compared to $1.60, 14 years earlier). Meanwhile, newly popular synthetic drugs have proliferated, including fentanyl, MDMA or ecstasy, and methcathinone or CAT; and methamphetamine or "speed" has re-emerged as "the most significant dangerous drug problem in terms of domestic clandestine manufacture." Id. See also Boston Globe, Sep. 4, 1996, at 1, 10 (attributing an 18-fold increase in heroin's purity/dollar over five years in part to the fact that the Colombian cartels have become importers of heroin, not just cocaine).
According to a Senate Judiciary Committee report, between 1993 and the first half of 1995 "the ability of U.S. forces to seize or otherwise turn back drug shipments...dropped 53%....[Annually, as] much as 84 metric tons of additional cocaine and marijuana could be arriving unimpeded...through the Eastern transit zone alone." The report, prepared by the Republican majority, attributes this to Clinton interdiction cutbacks, something the Administration denies. Senate Committee on the Judiciary, "Losing Ground Against Drugs: A Report on Increasing Illicit Drug Use and National Drug Policy," (prepared by the Majority Staff), S522-1, at 10-11.
11. Although "fewer Americans are using drugs...those who do have a much more serious problem, and helping them will prove far more difficult than anything that has so far been attempted." Michael Massing, What Ever Happened to the 'War on Drugs', New York Review of Books, Jun. 11, 1992, at 42 (arguing that the War on Drugs has attempted to safeguard suburbia while ignoring a progressively worsening inner city drug problem). The one success has been a reduction in the total number of drug consumers by roughly half since the late seventies, to 12.6 million users. Dept. of Health and Human Services, National Household Survey on Drug Abuse (Aug. 20, 1996).
12. Dept. of Health and Human Services, National Household Survey on Drug Abuse (Aug. 20, 1996). The survey showed that drug use among teenagers between 12-17 years of age increased 105% between 1992 and 1995, to 10.9 percent of this population. Marijuana use increased 141% among teenagers during this period. The annual number of new users of marijuana has risen every year since 1991.
13. The best estimate is that one third of all property crimes, assaults and murders are drug related. Senate Judiciary Committee (Feb. 27, 1996. (opening Statement of Gen. Barry R. McCaffrey, Director Designee of the Office of National Drug Control Policy). According to a survey reported by the DEA Administrator, 2 out of 3 males arrested in New York tested positive for cocaine use. Senate Judiciary Committee (Feb. 14, 1995) (prepared Testimony of Thomas Constantine regarding the criminogenic aspect of drug abuse); see also Bureau of Justice Statistics, U.S. Dept. of Justice, Sourcebook of Criminal Statistics 1993 (Kathleen Maguire & Ann L. Pastore eds., 1994) at 2.
14. Senate Judiciary Committee (Feb. 27, 1996) (opening Statement of Gen. Barry R. McCaffrey, Director Designee of the Office of National Drug Control Policy). Gen. McCaffrey also estimates that from 1990-1996, "illegal drug abuse cost America more than $300 billion and 100,000 dead." Id.
15. Dimensions of HIV Prevention: Needle Exchange vii (Mark D. Smith and Jeff Stryker, eds., 1993) (approximately 1/3 of HIV infections derive from shared needles).
16. The prison population has grown exponentially as ever larger numbers of drug offenders are incarcerated. From 1983 to 1993 the number of prisoners incarcerated for drug crimes quintupled. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later 10 (The Sentencing Project, Oct. 1995). For discussion of the increasing reliance on incarceration to solve our drug problem, see infra at pp. ---
17. In 1994, almost 7% of black adult males adults were incarcerated, compared to 1% of white adult males. "Nearly 7% of Adult Black men were Inmates in '94", N.Y. Times, 12/4/1995, A15 (citing U.S. Department of Justice Press Release, "Probation and Parole Population reaches Almost 3.8 Million," at 4, 7). The number of African American males in their 20s under criminal justice supervision -- such as incarceration, parole, or probation -- stood at 32.2% in 1995. Mauer and Huling, supra note ---, at 1 and 5. One response, by Prince Georges County high schools, has been to invite police to teach classes on how to be arrested, handcuffed, and searched. Wall Street Journal at BI, 16 (June 16, 1994).
Focusing on drug offenses, African Americans comprise 12 % of the population, 13% of all monthly drug users, 35% of those arrested for drug possession, 55% of those convicted of drug possession, and 74% of those sentenced to prison for drug possession." Mauer and Huling, supra note ---, at 12 (compiling statistics from 1992 and 1993). Mauer and Huling report that African Americans and Hispanics account for almost 90% of those sentenced to state prisons for drug possession, and that the number of Black (non-Hispanic) women incarcerated in state prisons for drug offenses multiplied more than eight fold from 1986 to 1991. Id. at 1, 2, and 13. These disparate conviction rates have all the more impact because drug offenders are sentenced to longer terms (6.5 years on average) than racketeers or extortionists (5 years). Keith Watters, "Law without Justice", National Bar Association Magazine, Mar/Apr. 1996 at 1, 23 (1996).
18. A recent public opinion survey found that only 6% of the respondents thought that drug abuse is less of a problem today than five years ago. The survey notes that 50% gave the federal government a grade of D or F for dealing with the problems of drug use and addiction. Eric E. Sterling, Drug Policy of a Failed User, reprinted in Legal Times: Law and Lobbying in the Nation's Capital, May 22, 1995, at 26. See also, e.g., Buckley et al, Symposium, "The War on Drugs Is Lost," National Review, 2/12/1996 vol. 48, p. 34 ff; , Eva Bertram and Kenneth Sharpe, "War Ends, Drugs Win," The Nation, Jan. 6, 1997 at 11; Michael Massing, What Ever Happened to the 'War on Drugs', New York Review of Books, Jun. 11, 1992; Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure 242 (1996).
19. Surgeon General Elders suggested that drug legalization should be studied as a possible alternative to urban disorder brought about by the war on drugs. Steven Labaton, "Surgeon General Suggests Study of Legalizing Drugs," N.Y. Times, Dec. 8, 1993, at A. 23. Judge Baer suppressed a large quantity of heroin he deemed seized without probable cause, until attacks by the media, Senator Dole and President Clinton led to him to reverse his ruling. Don Van Natta, Jr., Under Pressure, Federal Judge Reverses Decision in Drug Case, N.Y. Times, April 2, 1996, at A1. Former Governor William Weld found his nomination to be Ambassador to Mexico hijacked by Senator Jesse Helms on grounds that Weld had supported proposals to allow the medical use of marijuana. See, e.g., "White House Vows to Fight to Get Weld Confirmed as Mexico Ambassador," Dallas Morning News, July 17,, 1997 at 13A. Michael Tonry argues that "the War on Drugs and the set of harsh crime control policies...were undertaken to achieve political, not policy, objectives. It is the adoption for political purposes of policies with foreseeable disparate impacts, the use of disadvantaged black Americans as a means to achieving politicians' electoral ends, that must in the end be justified. It cannot." Tonry, Malign Neglect: Race, Crime and Punishment in America 39 (Oxford, 1995). For a discussion of the self-perpetuating nature of public policy that benefits politicians, see Randy E. Barnett, Bad Trip: Drug Prohibition and the Weakness of Public Policy, 103 Yale L.J. 2593, 2618 (1994); .
20. ---cross ref
21. ---cross ref
22. ---cross ref
23. ---cross ref
24. ---cross ref
25. ---cross ref
26. --cross ref
27. See George C. Pratt & William B. Peterson, Civil Forfeiture in the Second Circuit, 65 St. John's L. Rev. 653 (1991)("Perhaps no area of the law embodies more legal fictions -- and better illustrates their use and misuse -- than does civil forfeiture."); Steven Wisotsky, Not Thinking Like a Lawyer: The Case of Drugs in the Courts, 5 Notre Dame J. L., Ethics & Pub. Pol'y 651, 658 (1991)(arguing courts adopt "the operative premise is that drugs are bad, so bad that almost any law or law enforcement measure is validated"); United States v. One Parcel of Property, 85 F.3d 985 (2d Cir. 1996) (in "only one Court of Appeals opinion, a dissent, was there a full Matthews v. Eldridge analysis of the civil drug forfeiture statute's probable cause requirement"); William Genego, "Forfeiture, Legitimation and a Due Process Right to Counsel," 59 Brooklyn Law Review 337 at 340 and 343 (noting that most courts have consistently "rubber stamped the governments exercise of its forfeiture power...[unwilling] even to address the merits", and lauding the Second Circuit for having begun a critical reexamination of forfeiture law beginning in 1992).
28. The Comprehensive Crime Control Act of 1984 and the Anti-Drug Abuse Act of 1986 added new forfeiture laws and new civil penalties, among many stringent provisions. As to drug sentences, they were ratcheted up fairly continuously; one year's "get tough" provisions were deemed too lenient the next. The 1986 Act prescribed some of the harshest sentences in the U.S. Code: five year mandatory minimum sentences for sale of small amounts of drugs, and mandatory 10 year to life sentences for those convicted of possession with intent to distribute larger quantities of drugs, such as 10 grams of LSD.
In 1988 Congress doubled most of the penalties in the earlier law, and eliminated probation or parole in most cases. 21 U.S.C. sec. 843(b)(1)(B). The possible jail sentence for simple possession of recreational quantities of drugs was increased from one to two years. 21 U.S.C Sec. 844 (1988).
In 1994 Congress passed the Omnibus Crime Act, which included sixty new death penalty offenses and limits on habeas corpus proceedings. One of the provisions penalizes a state 5% (in later years, 10%) of its federal highway aid if it does not enact laws mandating license suspension upon a drug conviction. 23 U.S.C. sec. 159 (1994). See also Wisotsky, supra note --- at 904; Michele H. Kalstein et al, Calculating Injustice: The Fixation on Punishment as Crime Control, 27 Harv. C.R.-C.L. L. Rev. 575 (1992).
29. This program is authorized by the Anti-Drug Abuse Act of 1986 as amended in 1988. Pub. L. No. 100-690 Sec. 6091, 42 U.S.C. Sec. 3751 (1988).
30. LEAA provided 7.7 billion dollars to state and local governments between 1968 and its expiration in 1982. What the LEAA Elephant Learned, N.Y. Times, Apr. 21, 1982, at A22.
31. These grants are administered by the Bureau of Justice Assistance (BJA) office "to assist States and units of local government in carrying out specific programs which offer a high probability of improving the functioning of the criminal justice system ...by developing programs and projects to assist multijurisdictional and multi-State organizations in the drug control problem and to support national drug control priorities." 42 U.S.C. Sec. 3751(a). The money goes to the requesting state where it is distributed through the state's criminal justice agency to individual or combined units of state or local government that apply for funding.
32. A multijurisdictional task force is supposed to enable law enforcement agencies to collaborate across state, local, and national boundaries on drug investigations, arrests, seizures, information gathering and surveillance.
33. Of the 25 program areas eligible for federal block grant assistance, multijurisdictional drug task forces have consistently garnered between one-third and one-half of the funding each year. Over half of that amount finances the salaries and overtime pay of task force members. GAO, War on Drugs, Federal Assistance to State and Local Drug Enforcement 1, 5 (1993). In 1991 $139 million of Byrne money funded 881 MJDTFs with amounts allocated to each state from $111,000 to more than $23 million. Id. See also Justice Research and Statistics Association, Multijuridictional Drug Enforcement Task Forces: A Special Analysis Report of the National Consortium to Assess State Drug Control Initiatives 22 (June 1992)(approximately 40% of BJA formula grant funds were allocated to establish or enhance drug enforcement task force operations); James Coldren, Jr., Edmund McGarell, Michael Sabath, Kip Schlegel, Lisa Stolzenberg, "Multijurisdictional Drug Task Force Operations: Results of a Nationwide Survey of Task Force Commanders", Aug 1993. Justice Research and Statistics Association (reporting that 50% of the BJA formula grants were allocated to MJDTFs).
34. Justice Research and Statistics Association, Multijuridictional Drug Enforcement Task Forces: A Special Analysis Report of the National Consortium to Assess State Drug Control Initiatives 22 (June 1992). 91 percent of task forces were created from 1987 to 1992. "This corresponded to the availability of federal funds for task forces . . . " James Coldren, Jr., Edmund McGarell, Michael Sabath, Kip Schlegel, Lisa Stolzenberg, "Multijurisdictional Drug Task Force Operations: Results of a Nationwide Survey of Task Force Commanders", Aug 1993. Justice Research and Statistics Assn., (hereinafter JRSA: Commander Survey) at 5.
35. Justice Research and Statistics Association, Multijurisdictional Drug Control Task Forces: A Five Year Review, 1988-1992 [herinafter JRSA, Five Year Review] 6 (Oct., 1993). These statistics include only Byrne Formula Grant-funded task forces. There are many other federally funded drug task forces outside the Byrne grant program as well, such as the Organized Crime Drug Enforcement Task Forces (OCDETF), the DEA task forces, and the Bureau of Justice Assistance discretion grant funded task forces. Fifty-two localities had both DEA and Byrne-funded task forces. See GAO, War on Drugs, Federal Assistance to State and Local Drug Enforcement 1 (Apr., 1993). The DEA also deploys Mobile Enforcement Teams (METS), groups of 10 to 12 DEA agents each assigned to a local police department. Senate Judiciary Committee (Feb. 14, 1995) (prepared testimony of Thomas A. Constantine, DEA Administrator). While this article focuses on the Byrne-funded task forces, one should bear in mind that there is significant additional joint task force activity undertaken by these other programs.
36. JRSA, Five Year Review supra note __ at 6 - 7.
37. JRSA, Five Year Review supra note __ at 5 and 7
38. Pub. L. No. 91-513, 84 Stat. 1276 (1970), 21 U.S.C. Sec. 801 et seq. Congress passed other major forfeiture legislation in 1970 as well. It inserted forfeiture provisions in the Racketeer Influenced and Corrupt Organizations (RICO) act, 18 U.S.C. Sec.1961-68 (enacted as Title IX of the Organized Crime Control Act of 1970), and in the Currency and Foreign Transactions Reporting Act, now codified at 3q U.S.C. Sec. 5317(c).
39. 21 U.S.C. Sec. 881(a)(4) (1996). Criminal forfeiture, covering proceeds or instrumentalities of a federal drug felony, is governed by 21 U.S.C. Sec. 853.
40. Psychotropic Substances Act of 1978, Pub. L. No. 95-633, 92 Stat. 3768, 3777, 21 U.S.C. Sec. 881 (a)(6). Proceeds are broadly defined to include cash, negotiable instruments, securities, and other things of value. This amendment resulted in a 20-fold increase in the value of DEA forfeitures compared to the previous year. William Patrick Nelson, Should the Ranch Go Free Because the Constable Blundered?, 80 Cal. L. Rev. 1309, 1316 (1992)(quoting General Accounting Office, Asset Forfeiture--A Seldom Used Tool In Combatting Drug Trafficking 59 (1981)). The GAO report also notes that during the 10 years following enactment of RICO and CCE forfeitures in 1970, these forfeiture provisions were used in only 98 cases. Id. at 13.
41. Comprehensive Forfeiture Act of 1984, Pub.L. No. 98-473, Sec. 306(a)(codified as subsection (a)(7) to 21 U.S.C. Sec. 881 (authorizing forfeiture of real property used, or intended to be used, to commit or facilitate a federal drug felony). There is legislative history suggesting seizable property was conceived as property actually used in manufacturing drugs. See Nelson, supra note ---, at 1316. However courts and prosecutors have interpreted it broadly to include any real property having a connection to a drug offense punishable by a year in prison.
42. 21 U.S.C. sec. 853(p).
43. The drug offense must be punishable by more than one year's imprisonment to serve as a predicate for forfeiture. 28 U.S.C. Sec. 881(a) (1996). Only simple possession crimes fall below this threshold. 21 U.S.C. Sec. 841 (1989).
44. Compare the construction of 21 U.S.C. 881(a)(7) (forfeiture of real estate which, inter alia, facilitates a narcotics felony) in United States v. Santoro, 866 F. 2d 1538, 1541 (4 Cir., 1989)(requiring substantial connection to the felony) with United States v. 916 Douglas Avenue, 903 F2d 490, 493-94 (7th Cir., 1990) (requiring "more than an incidental or fortuitous connection").
David Smith, former Associate Director of the Dept. of Justice's Asset Forfeiture Office, notes that the various tests used by different courts to define facilitation -- "active aid," "some substantial connection to" a transaction, making a transaction "less difficult" -- "merely beg the question posed by the statutory language, rather than answering it." . David Smith, Prosecution and Defense of Forfeiture Cases, supra at note ---, at 3.03, p. 3-14 and n. 6 (Release 16, June, 1997 edition)(hereinafter "Smith, Forfeiture"). Is a car forfeitable because it was used to drive to a preliminary meeting that led to a drug transaction on a later date? See United States v. One 1974 Cadillac Eldorado Sedan, 548 F. 2d 421, 423 (2d Cir. 1977) (finding nexus sufficient). Is any quantity of drugs, however minute, sufficient to justify forfeiture of an automobile? See United States v. One Mercedes Benz, 846 F.2d 2 (2d Cir., 1988)(answering yes, and finding less than an ounce of marijuana sufficient for forfeiture). Must the government link the property to a specific drug transaction? See United States v. Banco Cafetero Panama, 797 F.2d 1154, 1160 (2d Cir.1986) (answering no, so long as the government can link the property with drug activity). These rulings are worrisome if the justification for denying criminal due process rights is that the forfeiture is an action against the guilty property based on its close relationship to the criminal activity, as Justice Scalia has argued. See Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 2814-15 (1993) (Scalia, J., concurring) (rejecting a claim that forfeiture and criminal sentencing collectively constitute double jeopardy). But they are also troubling, because disproportionate, if forfeiture is alternatively supposed to be based on the culpability of the owner, as the majority suggested in Austin (forfeiture rests "on the notion that the owner has been negligent in allowing his property to be misused and . . . is properly punished for that negligence.") Id. at 2808.
In Bennis v. Michigan, 116 S.Ct. 994 (1996), the court upheld forfeiture of an automobile that was the site of an act of prostitution against a claim by the client's wife. Finding insufficient nexus, Justice Stevens dissented, and criticized what he viewed as the court's grant of unbridled governmental power to confiscate private property with only a tangential relationship to a crime. The car in that case fit none of the traditional categories of goods subject to seizure -- contraband, proceeds of criminal activity, and tools of the criminal's trade. Id. at 1004. Justice Thomas, concurring in Bennis, noted that the Court has yet to delineate what it means in the context of forfeiture law for someone to "use" property. He urged that the limits be strictly construed when the government contemplates taking property from those it merely suspects of colluding in crime, or from those it does not even suspect. Id. at 1002 (Thomas, J., concurring).
45. Judy Rakowsky, State Tries to Seize Weymouth Bar in Drug Case, Boston Globe, Oct. 18, 1996, at C-11 (concerning the Mass. Attorney General's filing of a civil suit to forfeit the bar "for allegedly failing to stop drug dealing in the bar").
46. U.S. v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725 (1994). The court found against the government, holding that in the circumstances of the case, forfeiture of the father's home of 22 years for the acts of his son was an excessive fine barred by the 8th amendment.
47. Police have seized money in the absence of drugs, later confirming through laboratory analysis that it contained some residue of cocaine. Dollar bills are often used for packaging and sniffing cocaine, but because "the minutest trace of the drug will 'infect' other bills, much of the currency in the country now tests positive for narcotics." David Heilbroner, The Law Goes on a Treasure Hunt, N.Y. Times, Dec. 11, 1994, Section 6, at 70. Compare United States v. U.S. Currency, 30,060.00, 39 F. 3d 1039, 1042-43 (9th Cir. 1994)(given widespread contamination of bills, continued reliance on cocaine detection dogs is indefensible) with United States v. $67,220.00 in U.S. Currency, 957 F.2d 280, 285 (6 Cir. 1992) (dog identification is strong evidence of nexus).
48. The proceedings are instituted against tainted property as a civil in rem proceeding, based on the idea that the property is guilty and not the owner. United States v. 92 Buena Vista Avenue, 113 S. Ct. 1126, 1135 (1993); J. W. Goldsmith, Jr-Grant Co. v. U.S., 254 U.S. 505, 511, 41 S. Ct. 189 (1921); The Palmyra, 25 U.S. (12 Wheat) 1, 14 (1827)(civil proceeding constitutional because "the offense is attached primarily to the thing"); United States v. The Little Charles, 26 F. Cas. 979, 982 (C.Va. 1818) No. 15,612). The concept was borrowed from English and biblical law and adapted for use in America during the colonial period. In England, deodand, which made the instrumentality of someone's death forfeitable to the crown, is often cited as a predecessor of civil forfeiture, although the claim is not without doubt. Compare James Maxeiner, Bane of American Forfeiture Law--Banished at Last?, 62 Cornell L.Rev. 768, 771 (1977) (arguing that in rem forfeitures derive not from deodand but from English statutory forfeitures of vessels violating customs and revenue laws) and Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974)(same) with Holmes, The Common Law, Ch. 1 (M. Howe, ed. 1963) and Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notation of Sovereignty, 46 Temp. L. Q. 169, 182-184 (19??).
49. The general rule is that "seizure for purposes of forfeiture is one of those 'extraordinary situations that justify postponing notice and opportunity for a hearing" until after seizure. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677 (1974), citing Fuentes v. Shevin, 407 U.S. 67, 90 (1972)(seizure of yacht). However, an exception is made in the case of real estate because, unlike other assets, it is not removable, and there are other, less drastic ways to secure it pending a pre-seizure hearing. U.S. v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492 (1993). The Court applied the three pronged procedural due process test of Mathews v. Eldridge, 424 U.S. 319 (1976), weighing the private interest affected, the risk of erroneous deprivation under the process used, and the government's interest in avoiding more burdensome procedures. As the court noted, one consequence of having no pre-seizure hearing is that the magistrate issuing the warrant will not be informed of possible defenses to forfeiture, such as innocent ownership, leading to prolonged, erroneous deprivation. Id. at 114 S. Ct. 502-03.
50. To do so the owner must post a cash bond of 10% of the appraised value, up to $5,000, within 20 days of notification of the intended forfeiture, 19 U.S.C. 1608 (1988), and ordinarily will need to retain a lawyer as well.
51. As an in rem action, a forfeiture proceeding establishes government title to the property against all claimants. Criminal forfeitures are in personam actions which determine the governments rights to the property only against the defendant. Smith, Forfeiture, supra at note --- Sec. 2.03 (June, 1997 ed.).
52. 548 F. 2d 421 (2d Cir., 1977).
53. Some of the procedural inadequacies may be addressed by Congress in the coming year. See infra p. ---. In any event, among the few constitutional safeguards that apply in substantially weakened form are the Fourth Amendment right against unreasonable searches and seizures and the Fifth Amendment privilege against self incrimination (and, as detailed infra Sec. ---, the Eighth Amendment prohibition on excessive fines). See Boyd v. United States, 116 U.S. 616, 634-35 (1886) (characterizing civil forfeiture as "quasi criminal" for purposes of fourth and fifth amendments); United States v. Ward, 448 U.S. 242, 254-55 (1980). Even here, however, the rights bear little resemblance to their criminal law cousins. By contrast with a criminal trial, in a forfeiture case the government may be able to rely on a negative inference from the claimant's assertion of the fifth amendment privilege. See discussion in Smith, Forfeiture, supra note ---, at Sec. 10.03 (June, 1997 ed.)(concluding at p. 10-37 of Release 16 that the question remains open, and citing conflicting authority), and United States v. Property Located at 15 Black Ledge Dr., 897 F.2d 97, 103 (2d Cir. 1990). As to the fourth amendment, the exclusionary rule may apply to evidence, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696 (1965), but will not serve to suppress seized items which are themselves subject to forfeiture. INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40 (1984); United States v. $37,780 in United States Currency, 920 F.2d 159, 163 (2d Cir.1990); United States v. $12,390, 956 F.2d 801 (1992). For a discussion of the troubled relationship between forfeiture laws and the Fourth Amendment protections, see Nelson, supra note ---, at 1333.
54. United States v. Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1267 (2d Cir.1989)(hearsay) Smith, Forfeiture, sec. 11.03, p. 11-13 (no presumption of innocence); Lassiter v. Dept. of Social Services, 452 U.S. 18, 26-27 (presumption that indigent has no right to appointed counsel unless physical liberty at stake).
55. 19 U.S.C. Sec. 1615 (claimant must prove his right to the property by showing either that there was no basis for forfeiture or that he is an innocent owner). In United States v. $12,390, 956 F.2d 801, 810 (8th Cir. 1992), Judge Beam, dissenting, concluded that the government's ability to divest a claimant of title "with a mere probable cause showing, often established through the use of inadmissible evidence . . . [is] a denial of due process." Dicta in Second Circuit and the Ninth Circuit opinions have also questioned whether shifting the burden of proof to the defendant comports with due process. United States v. $49,576 U.S. Currency, 116 F. 3d 425 (9th Cir., 1997); United States v. one Parcel of Property Located at 194 Quaker Farms Road, 85 F.3d 985, 990 (2nd Cir., 1996). Regarding the burden of proof, see also Eighty Seven Thousand and Sixty Dollars, 23 F. 3rd 1352, 1354 (8th Cir., 1994); United States v. $121,100 in U.S. Currency, 999 F.2d 1503, 1505 (11 Cir., 1993).
56. J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 513 (1921); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-90 (1974). Calero-Toledo held forfeiture constitutional against innocent, non-negligent owner. However, it left open a possible constitutional defense for those who have done everything that reasonably could be expected to prevent the proscribed use of the property. Id. at 689. Particularly draconian results flow from the "relation back doctrine" except in those jurisdictions which have abolished it. Under the doctrine, title to the property passes to the government at the time of the act making it subject to forfeiture. It may be years before the government takes any action against the property or the owner, and in the interim it may have been sold to an innocent third party. Thus under this doctrine, the government may defeat the claim of a bona fide purchaser. This doctrine is presumed, but may be altered by specific legislative enactment, for example by providing for transfer of title when the property is seized. See, e.g., Motlow v. State ex rel. Koeln, 295 U.S. 97 (1935); United States v. Stowell, 133 U.S. 1 (1890); Henderson's Distilled Spirits, 81 U.S. (14 Wall.) 44. 56-67 (1871). Congress codified the relation back doctrine in the Comprehensive Forfeiture Act of 1984, but has also amended Sec. 881 to protect the interests of innocent owners in federal forfeitures, and has further provided an opportunity to mitigate unjust cases through an administrative remission process. See also Bennis v. Michigan, 116 S.Ct. 994 (1996), discussed supra at fn. ---.
57. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984) (acquittal does not estop civil forfeiture action because of the different burden of proof in the two proceedings); United States v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725, 733 (1994). As to any double jeopardy claim against successive criminal and forfeiture proceedings or punishments, the Supreme Court disposed of that claim by holding that although in rem forfeiture is both remedial and punitive in nature, it is not so punitive as to equal a second punishment abridging the double jeopardy clause. United States v. Ursery and $405,089.23 in U.S. Currency, -- U.S. --, 116 S. Ct. 2135 (1996).
58. See George C. Pratt & William B. Peterson, Civil Forfeiture in the Second Circuit, 65 St. John's L. Rev. 653 (1991)("[T]he scope of civil forfeiture has been expanded to function as punishment for the property owner's criminal conduct, while the doctrine continues to masquerade as a civil proceeding against property . . . , Congress has created a draconian punishment that is virtually bereft of constitutional protection."); United States v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725 (1994)("The mere fact that the criminal activity occurred at the property does not make the property 'guilty' of an offense, 'as could reasonably be argued of [a] distillery . . . or [a] pirate vessel' . . . ").
59. Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty, 46 Temple L. Q. 169, 252 (1973). See also United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2nd Cir. 1992)("We continue to be enormously troubled by the government's increasing and virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in those statutes."); Boyd v. United States, 116 U.S. 616, 637 (1886), in which the Supreme Court rejected the "proposition that the [in rem] proceeding is not, in effect, a proceeding against the owner of the property, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is to be forfeited." In today's Court it is Justice Stevens who has been most critical of the Rehnquist Court's reliance on the fiction, sometimes called the personification doctrine, that forfeiture is a civil action against property. Ursery, 116 S. Ct. 2135, ---, --- (Stevens, J., dissenting).
60. The former Associate Director of the Department of Justice's Asset Forfeiture Office draws this analogy in Smith, Forfeiture, supra at note ---, at Sec. 1.02, 1-18 (Release 20 in June, 1997 ed.). A 9th Circuit opinion notes its wariness of civil forfeiture because it imposes "quasi-criminal" penalties without affording criminal procedural protections. United States v. $191,910 in U.S. Currency, 16 F.3d 1051, 1068 (9th Cir., 1994). See also Juan R. Torruella, "The 'War on Drugs': One Judge's Attempt at a Rational Discussion," 14 Yale J. on Reg. 195, 256 (1997)("Some of the most eggregious actions committed by the government have been the the area of forfeitures, in which courts have allowed abuses which seriously undermine the principles of legality and due process.") For an early example of punishment in the guise of an in rem, non-criminal proceeding against property, see Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871)(upholding the civil forfeiture of estates of Confederate rebels as constitutional under the power to prosecute war). A dissenting opinion argued that such confiscation was effectively punishment for treason, which should only be applied after criminal prosecution. Id. at 315, 318-23) (Field, J., dissenting). See also Tyler v. Defrees, 78 U.S. (11 Wall.) 331, 351-53 (1871) (Field, J., dissenting).
61. GAO, Asset Forfeiture: An Update (Apr. 24, 1989) (submitted to the Subcommittee on Crime of the House Judiciary Committee) (reporting its 1989 analysis of 1,125 Justice Dept. and Customs forfeitures, showing that of judicial forfeitures cases 89% were uncontested, resulting in default judgments for the government). Although a claimant may also seek mitigation of a forfeiture judgment from the Attorney General, the odds here are even more daunting: of $460 million in assets which the Justice Department sought to forfeit in 1990, it refunded just $13 million. Federal Seizure of Illegal Assets Nets Government $1.5 Billion Since 1985, U.S.Law Week (Daily Edition), Feb. 4, 1991. Consequently the best alternative for most claimants is to seek an agreement with the government to return some portion of the seized property. While this often occurs, the government has a substantial advantage in negotiation and the deal struck may instead exchange a prosecutorial commitment not to pursue criminal charges if the claimant will waive her rights to all the property, or even turn over additional property. At the time the GAO's analysis was undertaken, 4/5 of the cases examined were judicial forfeitures, and less than 1/5 administrative forfeitures, because administrative forfeitures could not be instituted against real estate or against assets worth over $100,000. But the ceiling has since been raised to $500,000, resulting in a huge shift to administrative forfeitures. 80% of federal forfeitures now occur administratively. Steven L. Kessler, Civil and Criminal Forfeiture: Federal and State Practice Sec. 6.01, at 6-4 (1993).)
62. Comprehensive Crime Control Act of 1984, PL 98-473 Sec. 309-310. Although the Fund was initially required to deposit to the Treasury's General Fund all sums in excess of $5 million that remained after authorized payments, this ceiling was abolished by a 1986 amendment. 28 U.S.C. Sec. 524(c)(4), as amended by Department of Justice Assets Forfeiture Fund Amendments Act of 1986, Pub. L. No. 99-570, Sec.1152(a)(5), 100 Stat. 3207-12. See also U.S. Office of National Drug Control Policy, National Drug Control Strategy 28 (Sept. 1989) (containing President Bush's endorsement of the policy of using proceeds from forfeiture for law enforcement). Pursuant to 21 U.S.C. Sec. 881(e)(2)(B), whenever money is seized by a purely federal agency other than the postal service, the agency may keep the expenses related to the seizure, and must transfer the rest to the Department of Justice Assets Forfeiture Fund. This Fund is earmarked for law enforcement. It may not be used to pay the salaries of United States employees, but may be used to pay informants for information, or to pay salaries of local police or other non-federal employees. 28 U.S.C. Sec. 524; Directive 90-5, "The Attorney-General's Guidelines on Seized and Forfeited Property" (July 31, 1990), at VII(D).
63. The Attorney General may share forfeited property with any state or local law enforcement agency which participated in any act leading to seizure or forfeiture of the property, as authorized by 21 U.S.C. Sec. 881(e)(1) and 19 U.S.C. Sec. 1616(a), and, with regard to money laundering violations, 18 U.S.C. Sec. 981(e).
64. Seizures accomplished exclusively by state or local agencies may be "adopted" by the federal government whenever the conduct giving rise to the seizure is in violation of federal law. Directive 90-5, "The Attorney-General's Guidelines on Seized and Forfeited Property" (July 31, 1990), at II(A). When the federal government has "adopted" a state forfeiture case, 80% of judicially or administratively forfeited assets are allocated to the state or local agencies for law enforcement purposes, and 20% remains with the federal government. In joint seizures, the share is determined on a case by case basis based on the amount of work each agency performed. A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, in DOJ Asset Forfeiture Manual 7-8 (3/94); 28 U.S.C. Sec. 881(e)(3). The Justice Department requires state and local agencies receiving equitable sharing funds to use them for law enforcement purposes including but not limited to payments for law enforcement equipment, weapons, salaries and overtime, training, expenses for travel, informant reward money, detention facilities. Id. at 10-11. State and local prosecutors may also receive equitable sharing under specified conditions, which include preparing documents or providing an informant. Id. at 8-9. States must request equitable sharing within 60 days of seizure or, if federally adopted following seizure, of the date of adoption. Id. at 6.
65. For example, the Little Compton, Rhode Island police department acquired asset allocation of more than 10 times its annual budget through participation in a single operation. Steve Stecklow, "Big Money for a Tiny Police Force," Philadelphia Inquirer, Aug. 24, 1992, at A1. Such individual forfeitures in the millions are not uncommon. See, e.g., United States v. Cauble, 706 F2d 1322 (5th Cir. 1983)(RICO forfeiture of marijuana smuggler's businesses netted property valued at $15-20 million). The largest forfeitures, however, have emanated from securities law forfeiture. See Sharon Walsh, Give and Take on the Hot Issue of Asset Forfeiture, Wash. Post. F7 (3/11/1996)(listing a $222 million forfeiture in the Drexel Burnham case and a $176.3 million forfeiture in the Michael Milken case). For a discussion of law enforcement's substantial economic stake in forfeited assets, see pp. ----.
66. The various state forfeiture distribution formulas are compiled in the Appendix, infra. Most state laws provide the police with a less favorable percentage of the assets than the federal law, or require sharing the assets with other state agencies. See, e.g., Ill. Rev. Stat. ch. 702 Sec. 550/12, 570/505 (distribution formula of 10% to general fund, 25% to state's attorney, and 65% to police narcotics law enforcement fund). Some states, such as Missouri and Indiana, require seized assets to be paid into the state's general fund or some non-law enforcement agency, with none earmarked for police. Under equitable sharing of federally adopted seizures, however, 80-85% of federally forfeited assets may be redistributed to the state and local law enforcement agencies. 21 U.S.C. 881(e). See also "The Attorney General's Guidelines on Seized and Forfeited Property."
67. Federal adoption may occur after seizure of the property or arrest. The local agency has 30 days after seizure to request the U.S. Attorney to adopt it as a federal case. Directive 93-1, at 4, Memo of Cary Copeland dated Jan. 15/93, contained in DOJ Asset Forfeiture Manual. Alternatively, local police may federalize a seizure by requesting the DEA, FBI, INS, IRS, Postal Inspection Service, or ATF to assist it in the investigation, seizure or arrest. Directive 91-4, A Guide to Equitable Sharing of federally Forfeited Property for State and Local Law Enforcement Agencies, in DOJ Asset Forfeiture Manual 1-2 (Dec. 1990).
According to Directive 93-1, at at 3-4, forfeiture cases should generally be brought in the jurisdiction where the criminal defendants (if any) are being prosecuted. But massive numbers of forfeitures are being brought federally, either because an otherwise "local" case is handed to the Justice Department for federal prosecution, or because criminal prosecution is dispensed with.
68. "In determining the equitable share for each participating agency, the following factors shall be considered: (1) whether the seizure was adopted or was the result of a joint investigation . . . (7) Whether the state or local agency could have achieved forfeiture under state law, with favorable consideration given to an agency which could have forfeited the asset(s) on its own but joined forces with the United States to make a more effective investigation." Directive 90-5, The Attorney-General's Guidelines on Seized and Forfeited Property in DOJ Asset Forfeiture Manual, Vol. 3 V(B)(7), (July 31, 1990). The Department of Justice itself developed the equitable sharing concept, Directive 91-7, "Asset Forfeiture Talking Points", May 1991, prepared by Executive Office for Asset Forfeiture of DoJ, at 2, in D of J Asset Forfeiture Manual.
The Department also prohibits discontinuation of a federal forfeiture proceeding in favor of a state proceeding unless the United States Attorney personally approves it after considering the financial consequences to its Assets Forfeiture Fund. Directive 90-5, The Attorney-General's Guidelines on Seized and Forfeited Property in DOJ Asset Forfeiture Manual, Vol. 3. IX (A) and (B) (July 31, 1990).
69. According to the Deputy Attorney General for the State of California, "[T]he formula for the distribution of proceeds to law enforcement is a determining factor in motivating forfeiture-focused investigations and in choosing the forum for conducting forfeiture proceedings." Gary Schons, Fighting Drugs with Drug Money: AB4162 Asset Forfeiture: A New Weapon in the War on Drugs, Dicta: The Lawyer's Magazine 7 (1988), at 40. Journalist Dan Baum has described the impact of this forum shopping in California as follows:
California . . . allowed 65 percent of assets seized in state or local drug busts to be paid to the participating police, with the rest going for mental health, district attorneys, and informants. But the lawmen of the Golden Bear State still preferred to go federal. They perfected the art of presenting 100-percent complete cases to the U.S. attorney for 'adoption,' paying the U.S. Justice Department a 10-percent processing fee and keeping a full 90 percent of the seized assets. 'That is, we receive a case which is in every respect a local case. . . and we put our cover on it,' U.S. Attorney Joseph Whitley told Congress. When Rep. Larry Smith suggested the scheme was making the federal government a partner in 'subverting' California laws, Whitly could only agree.
Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure 242 (1996). See also In re Property Seized from Bly, 456 N.W.2d 195, 199 (Iowa 1990) and United States v. One Parcel of Property Located at 1606 Butterfield Road, 786 F. Supp. 1497, 1512 (N.D. Iowa 1991)(in which local authorities circumvented the Iowa's court's ruling that the state homestead statute prohibited forfeiture of Bly's house by having the forfeiture "adopted" and proceeding under federal forfeiture laws); J. Bradley Horn, The Reach of Iowa's Civil Forfeiture Statute: How Far Is Too Far? note, 42 Drake L. Rev. 661 (1993)(analyzing the Bly case); and United States v. Winston-Salem Forsyth County Bd of Education, 902 F.2d 267 (1990)(upholding local police retention of equitable sharing proceeds over a challenge by a county board of education that it was entitled to such proceeds under North Carolina forfeiture laws). Congressional efforts to amend the forfeiture law to prevent such circumventions have failed, as detailed infra at ---.
70. David Heilbroner, The Law Goes on a Treasure Hunt, N.Y. Times Dec. 11, 1994, Section 6, at 70 (quoting the 1992 testimony of Cary H. Copeland, then director of the Justice Department's executive-office asset forfeiture unit). See also United States v. Two Tracts of Real Property, 998 F. 2d 204, 213-14 (4th Cir., 1993)("one of the most potent weapons in the government's war on drugs").
71. Heilbroner, supra note ---.
72. This provides the alternative rationale, endorsed by the Supreme Court, that forfeitures can buy law enforcement strategies which are effective. According to the Court, the government's legitimate interest in forfeiture includes the funding it provides for law enforcement operations. Caplin & Drysdale v. United States, 491 U.S. 617, 629 (1989) ("[T]he Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his ill-gotten gains . . . .The sums of money . . . are substantial, and the Government's interest in using the profits of crime to fund these [law enforcement] activities should not be discounted."). Only Justice Blackmun questioned the acceptability of pecuniary motive as a legitimate goal of the forfeiture statute. Id. at 640 (Blackmun, J., dissenting). Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 687 n. 26 (1974)("Seizure and forfeiture statutes also help compensate the Government for its enforcement efforts . . . ").
73. See Alison Roberts Solomon, Note, Drugs and Money: How Successful is the Seizure and Forfeiture Program at Raising Revenue and Distributing Proceeds?, 42 Emory L.J. 1149 (1993).
74. The Justice Department evaluation cited above noted the potential diversion of law enforcement policy when it warned that "it is important. . . that task force commanders use [their expertise in locating assets] for the benefit of the community effort to control drugs." "JRSA, Five Year Review, supra note __ at 23.
75. The requirement of impartiality is one aspect of the requirement that just decisions not be based on arbitrary, non-relevant factors, such as the identity of the person affected or of the decision-maker. We aspire to a "government of laws, not men." Elsewhere one of the authors has argued more generally that a distinguishing characteristic of any moral judgment is its universality, and therefore all those who forsake this requirement, whether for reasons of corruption or relativist ideology, abandon the tools with which to make moral decisions. See Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 Texas L.Rev. 523 (1996). In recent years, however, this view has been questioned by scholars on a variety of grounds -- for example, that impartiality is unattainable; that morality must spring from an ethic of caring or identification rather than neutrality; or that we would do better to recognize the plurality and positionality of all judges and all judgments. See, e.g., Pat Cain, Good and Bad Bias: A Comment on Feminist Theory and Judging, 61 S. Cal. L. Rev. 1945 (1988); Margaret J. Radin, The Pragmatist and the Feminist, in Pragmatism in Law and Society 127, 134 (M. Brint and W. Weaver, eds. 1991); Gerald B. Wetlaufer, Rhetoric and its Denial, 76 Va. L. Rev. 1545, 1568-9 (1990); Richard Rorty, Contingency, Irony and Solidarity 58-59 (1989).
76. In re Murchison, 349 U.S. 133, 136 (1955)(under the due process clause, a judge cannot "be a judge in his own case [nor] try cases where he has an interest in the outcome"); Gibson v. Berryhill, 411 U.S. 564 (1973) (civil); Tumey v. Ohio, 273 U.S. 510, 523, 532 (1927)(criminal). An impartial tribunal "safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process_[I]t preserves both the appearance and reality of fairness, 'generating the feeling, so important to a popular government, that justice has been done.'" Marshall v. Jerrico, 446 U.S. 238, 242 (1980), quoting Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951) (Frankfurter, J., concurring).
77. Tumey v. Ohio, 273 U.S. 510, 523, 532 (1927). See also Bracy v. Gramley, 1997 U.S. Lexis 3548 (June 9, 1997)("...the Due Process Clause clearly requires a 'fair trial in a fair tribunal,...before a judge with no...interest in the outcome..."). ; Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Assn, 426 U.S. 482 (1976)(finding insufficient stake to constitute conflict); Pepsico Inc. v. McMillen, 764 F. 2d 458, 460 (7 Cir., 1985)(recusal required where counsel in case had considered employing judge); State v. Chinn, 146 W. Va. 610 (1961)(due process abridged where fines paid judges salary), and cases cited infra notes --- to ---.
78. Tumey v. Ohio, 273 U.S. 510 (1927). In Tumey the mayor served as municipal judge in possession of liquor cases, and was paid expenses from the fines he collected. Tumey was convicted and fined $100, a judgment which the Supreme Court found in violation of the Fourteenth Amendment because the mayor's decision might have been clouded by two conflicts of interest. First, the mayor had "a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case" because he was paid an emolument contingent on the fines he collected ($12 in this case). Id. at 523. Second, the mayor's role combined inconsistent positions as judge and administrator, the latter giving him a professional interest and motive to convict in order to enhance his town's budget. This "necessarily involves a lack of due process of law." Id. at 534.
79. Connally v. Georgia, 429 U.S. 245 (1977)(per curiam). Similarly, due process is abridged when the fact finder is empowered to rule on the professional license of a competitor See Gibson v. Berryhill, 411 U.S. 564, 578-79 (1973)( holding the due process impartiality requirement violated when an administrative adjudicatory board of private optometrists adjudicated charges brought against a competitor).
80. 273 U.S. 510, 533-34 (1927).
81. 409 U.S. 57 (1972).
82. The mayor impermissibly occupied two inconsistent positions as judge and administrator, the latter giving him a partisan motive to convict in order to enhance the town budget, and this necessarily abridged the due process guarantee. Id. at 409 U.S. 58-62. The Court noted that "the fact that the mayor [in Tumey] shared directly in the fees and costs did not define the limits of the principle. Plainly [a] "possible temptation" may also exist when the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court."
83. In Tumey, the Court discussed what degree or nature of interest would disqualify a judge. It reviewed English common law to demonstrate that "the slightest pecuniary interest of any officer, judicial or quasi judicial, in the resolving of the subject matter which he was to decide, rendered the decision voidable." Tumey v. Ohio, 273 U.S. 510, 523 (1927). Although the Court did not go so far, it enunciated the rule that any interest which would "offer a possible temptation to the average man as a judge" to forget the burden of proof or otherwise fail to "hold the balance nice, clear and true" requires disqualification. Only interest that is so "remote, trifling, and insignificant that it may fairly be supposed to be incapable of affecting the judgment" of an average man may be disregarded. Id. at 531-32.
84. See In re Murchison, 349 U.S. 133, 136 (1955)(disqualification does not require actual judicial bias because "justice must satisfy the appearance of justice"); Tumey v. Ohio, 273 U.S. 510, 532 (1927)("There are doubtless mayors who would not allow . . . [the receipt of] $12 costs in each case to affect their judgment in it; but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice."); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)(finding impermissible "possible temptation" from conflict where judges decision increased value of class action judge had filed).
85. See LSA-R.S. Title 32 Sec. 1550 (K) and (L)(40% of proceeds from sale of forfeited contraband allocated to court); Sec. 1550(B)(issuance of warrants for search or seizure of forfeitable property); Sec. 1550(C)(4)(when the defendant is acquitted, a rebuttable presumption against forfeitability applies unless the court finds a compelling reason for the forfeiture).
86. 446 U.S. 238, 242 (1980)
87. The Ohio statute at issue allocated 15% of the fines collected to deputy marshals as compensation for securing evidence in liquor cases, 10% to the prosecuting attorney, 15% to the police officers, and the amount of costs to the mayor/hearing officer. Tumey at 518-19.
88. Tumey, 273 U.S. at 535. The court went on to specifically endorse offering rewards or a percentage of the recovery to informers. Id.
89. The Fair Labor Standards Act of 1938, Sec. 16(e), as amended 29 U.S.C. Sec. 216(e).
90. Jerrico, Inc. v. Department of Labor, 24 Wage and Hour Cas. (BNA) 103; 86 Lab. Cas. (CCH) p33,775 May 7 (U.S. Dist. Ct., Dist. of Col., 1979).
91. See Jerrico at 248(stating that the requirements of Tumey and Ward v. Village of Monroeville, 409 US 57 (1972), designed for officials in a judicial or quasi judicial capacity, are not applicable to prosecutors, and noting the wide discretion given to prosecutorial decisions).
92. Jerrico, 446 U.S. at 248.
93. Jerrico, 446 U.S. at 249-50 (citations omitted). Among the cases cited was Bordenkircher v. Hayes, 434 U.S. 357 (1978), the relevance of which is further discussed infra at n. ---. See also Young v. United States ex rel. Vuitton et fils S. A., 481 U.S. 787, 807 (1987)("The requirement of a disinterested prosecutor is consistent with our recognition that prosecutors may not necessarily be held to as stringent a standard of disinterest as judges.")
94. Jerrico, 446 U.S. at 250-52. "Unlike in Ward and Tumey, it is plain that the enforcing agent is in no sense financially dependent on the maintenance of a high level of penalties." Id. at 251.
95. Jerrico, 446 U.S. at 245-46, 250-51.
96. Jerrico, 446 U.S. at 243-44. However, this conclusion can be challenged factually. Nothing in the Court's statement of facts excludes the real possibility that the ESA's national office might require its regional administrators to seek higher fines because of the potential financial benefit it could receive in this or future years, regardless of how a particular regional office might fare.
97. As the opinion noted, "justice must satisfy the appearance of justice." Jerrico, 446 U.S. at 243, citing Offutt v. United States, 348 U.S. 11, 14 (1954).
98. One obvious potential effect of an incentive system is a selective prosecution policy in which those whose prosecution would most enhance the government's coffers are targeted. The Court noted this issue but found it unnecessary on the facts to decide "whether different considerations might be held to apply if the alleged biasing influence contributed to prosecutions against particular persons, rather than to a general zealousness in the enforcement process." Jerrico, 446 U.S. at 250 n. 12.
99. Gary Shons, Asset Forfeiture in California: A Preview of AB 4162, Prosecutor's Brief 5 (Fall 1988). That year the DEA seized $505 million in Sec. 881 forfeitures.
100. Federal Seizure of Illegal Assets Nets Government $1.5 Billion Since 1985, U.S. L. Wk. Daily Ed., Feb. 4, 1991. "$460 million...were deposited into the fund in 1990, which was a 28 percent increase over fiscal 1989 and 15 times greater than the total in 1985, when the fund was established." Id. See also U.S. Dep't of Justice, Federal Forfeiture of the Instruments and Proceeds of Crime: The Program in a Nutshell 1 (1990).
101. Sharon Walsh, Give and Take on the Hot Issue of Asset Forfeiture", Washington Post, Mar. 11, 1996, at F7. The article reports that the federal government has received the following amounts from asset forfeitures in criminal cases: 1986: 93.7 million; 1987: 177.6 million; 1988: 205.9 million; 1989: 580.8 million; 1990: 459.6 million; 1991: 643.6 million; 1992: 531 million; 1993: 555.7 million; 1994: 549.9 million. These figures include non-drug related forfeited assets, particularly from insider trading cases. Id. During the period of major growth, 1985 through 1990, asset seizures increased at an average annual rate of 59%, with the Asset Forfeiture Fund inventory quadrupling to 1.3 billion. Smith, Forfeiture, supra note ---, at sec. 1.02, p. 1-21 (Release ---, in 1993? 1994? ed.)(citing the Annual Report of the Department of Justice Asset forfeiture Program 5 (DOJ, 1990)).
Reports on some U.S. Attorney's Offices show seizures equal to much or all of their operating budgets. See, e.g., Ruth Hawk,: Western District Office Pays for Itself and More, Pennsylvania Law Journal, Nov. 18, 1993, at 7 of Pittsburgh section ("According to U.S. Atty. Frederick W. Thieman, 'The 1993 figures demonstrate that [debt collection and 1.9 million in asset forfeitures] routinely pay for the operation of the entire U.S. Attorney's Office [of the Western District of Pennsylvania] . . .' He noted that the combined total -- more than $10 million -- exceed the entire operating budget of his office by about 75 percent."); Pratt and Peterson, supra note ---, at 671 ("In an eight month period during 1989, for example, the United States Attorney's office in the Eastern District of New York collected $37,000,000 from civil forfeitures", four times the operating budget)(citing the New York Law Journal, Jul. 27/1989 at 1, 21).
102. In 1990 the Attorney General urged U.S. Attorneys to increase the volume of forfeitures in order to meet the annual budget target." . . . Failure to achieve the $470 million projection would expose the Department's forfeiture program to criticism and undermine confidence in our budget projections. Every effort must be made to increase forfeiture income during the remaining three months of [fiscal year} 1990." Executive Office for United States Attorneys, U.S. Dept. of Justice, 38 United States Attorney's Bulletin 180 (Aug. 18, 1990), cited in United States v. James Daniel Good Real Property, 510 U.S. 43, 114 S.Ct. 492, 502, n. 2. (1993). This followed a June 21, 1989 memorandum from Acting Deputy Attorney General Edward S. G. Dennis, Jr., to the same parties, which urged U.S. Attorneys to make forfeiture proceedings a priority: "It is imperative that we fulfill the commitment that was made to increase forfeiture production." Directive 89-1, contained in DOJ Asset Forfeiture Manual, V. 3. See also Apr. 22, 1991 memorandum from Prin. Assoc. Deputy Atty.-Gen. George Terwilliger, III, to all U.S. Attorneys, "Subject: Need for Increased Emphasized upon Criminal Forfeiture", contained in DOJ Asset Forfeiture Manual, vol. 3 (directing U.S. attorneys to "exert strong management direction" by ensuring "that your criminal prosecutors are aggressively focusing not only upon the conviction of individuals but also upon the civil or criminal forfeiture of their assets . . . "); Directive 91-12, Jul. 8, 1991 Memorandum of Director of Executive Office of Asset Forfeiture Cary Copeland to, inter alia, all U.S. Attorneys, "Subject: Need to Expedite Asset Forfeiture Deposits," contained in DOJ Asset Forfeiture Manual, vol. 3 ("Funding of initiatives important to your components will be in jeopardy if we fail to reach the projected level of forfeiture deposits . . . Please advise your staff of specific actions that can be taken to maximize deposits to the [Asset Forfeiture] Fund between now and the end of the fiscal year."); ; Memorandum from Attorney General Janet Reno, FBI Director Louis J. Freeh, and DEA Administrator Thomas Constantine, Asset Forfeiture Program Activity at 1 and 2 (Feb. 12, 1996)("We are requesting that each United States Attorney...to develop ways to make the fullest, appropriate use of the forfeiture statutes...Forfeiture specialists should be involved early and consulted frequently during the investigation and prosecution of criminal cases, including settlement and plea discussions.")
103. Directive # 91-14, Memorandum from Cary Copeland, Director and Chief Counsel of Exec. Office of Asset Forfeiture, dated Oct. 1, 1991, in DOJ Asset Forfeiture Manual Vol. 3.
104. Department of Justice, Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies (1994).
105. JRSA, Five Year Review, supra note __ at 10. In 1991, the peak year during the five year study, multijurisdictional drug task forces seized assets worth more than 346 million dollars, a 147% increase over 1988 seizures. Id. at 9. These amounts include only those seizures by task forces receiving federal Byrne grants. They do not include assets seized by DEA or other task forces, or seizures under state forfeiture laws.
106. JRSA, Five Year Review, supra note __ at 23. The report provides figures showing an 89% increase in asset seizures by task forces between 1988 and 1992, noting that such seizures "provide resources to task forces that have experienced decreased funding." Id. at 9.
107. Indeed, in some departments, police salaries are paid directly from asset forfeiture funds, so long as the funds supplement rather than supplant budgeted positions. Executive Office for Asset Forfeiture, Office of the Deputy Attorney General, A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies Sec. VII, p. 4(Dec. 1990).
108. C. Northcote Parkinson, Parkinson's Law (Houghton Mifflin, 1957). One of Parkinson's laws is that officials seek to make work for each other, even when there is nothing to do. Id. at 4. As illustrations, he points to the British Colonial Office, which expanded exponentially as the British Empire was declining; and British Admiralty officials, who succeeded in almost doubling their number as ships in commission declined by two thirds. Id. at 8-11. "The officials would have multiplied at the same rate had there been no actual seamen at all," Parkinson concludes. Id. at 10.
109. See, e.g., Russell Carolo and Doreen Marchionni, "Seizure Laws Have Been Wheels of Fortune for Tacoma Police," The [Tacoma] News Tribune, June 20, 1994 at A1 (reporting that the Tacoma Police Department had acquired and retained more than 50 vehicles through forfeiture); Russell Carolo and Doreen Marchionni, "Above the Law: Seized or Stolen," The Tacoma News Tribune A1 (June 19, 1994)(reporting seixure and use of microwave ovens, baseball gloves, televisions, and automobiles).
110. See Miller supra note --- at 319 (citing one such policy in Southern California, and quoting a drug enforcement agent there as saying, "my supervisor made it extremely clear that big money cases were a lot more favorable for your overall evaluation than big dope cases").
111. See Associated Press, "Cops in Utah City will get a commission on Drug Busts", 1/31/95 (quoting Mayor Mike Dalpiaz, author of the Helper, Utah Forfeiture Incentive Resolution, as promising that "if the city gets a house through a drug forfeiture, and we put it on the market and sell it for $50,000, then by God the guy who made the bust is going to get a nice bonus check for his work".) This ordinance raised community concerns about the risk of police planting drugs on people in order to seize their property. "Only Cops Seem to Like Town's Plan to Offer Cut of Drug Forfeiture Funds," Phoenix Gazette, 3/3/95 at 29.
112. For an economist, asset forfeitures are one type of "consumer good" purchased by law enforcement agencies, along with neighborhood patrols, homicide investigations, forensic tests and all other law enforcement activities. The pricing of these various goods affects how much total enforcement the agency will buy, and how it allocates its purchases among alternative enforcement activities.
When Congress channeled most forfeited assets back to the agency that seized them, the cost of asset seizure fell substantially, producing both an "income effect" (lower prices effectively increased the budget of the law enforcement agency) and a "substitution effect" (asset seizure became a more attractive purchase for law enforcement relative to alternative purchases as its price declined). The income effect should ultimately result in a larger quantity of law enforcement purchases (including asset seizures and excluding only some "inferior goods" which are, like Spam, purchased only when more attractive alternatives are not affordable). The substitution effect, however, is our focus, because it predicts that the forfeiture laws should powerfully alter law enforcement priorities, increasing asset seizures at the expense of other law enforcement activities. See Kreps, A Course in Microeconomic Theory, 58-62 (1990). On price elasticity generally see William Samuelson and Steven Marks, Managerial Economics, 77-124 (2d ed. 1995).
113. See infra note --- [CHI L Rev EDITOR: It includes language, "Suppose a defendant clearly establishes..."]
114. The most recent convert to this tactic is the New York Police Department, which inaugurated its first reverse sting effort in October, 1997 with the arrest of 72 marijuana buyers in Washington Square Park. Mayor Giuliani announced that such reverse stings would henceforth be instituted throughout the city. Norimitsu Onishi, "Mayor Unveils Sting Strategy Against Drugs," NY Times, Oct. 29, 1997, p. B1.
115. Reverse stings are also attractive to police officers because they can be executed with little investigation, while great expenditures of time and manpower are usually necessary when the targets are drug dealers. This is not to say that reverse stings are always illegitimate. In some cases, they may help shut down open air drug markets by deterring buyers, or apportion punishment to include the suburban buyers who enter and help "corrupt" some inner city neighborhoods. But in ordinary circumstances, arresting buyers rather than sellers targets the less culpable and less dangerous individuals while neglecting more serious crimes, and involves the police in activity which may easily degenerate into a program of wholesale entrapment.
116. J. Mitchell Miller and Lance H. Selva, Drug Enforcement's Double-edged Sword: An Assessment of Asset Forfeiture Programs, 11 Justice Quarterly 313, 325 (June 1994). The participant, Mitchell Miller, worked as a police officer for one year while attending a graduate school program in sociology. He reports that the officers he worked with preferred arresting a buyer with a bankroll and a good car to a trafficker with a large quantity of drugs and no cash, Id. at 324, and concludes that the forfeiture laws give law enforcement a powerful incentive to "allow the illegal drug market to continue. In this market, the drug enforcers and the drug traffickers become symbiotic beneficiaries of the 'War on Drugs.'" Id. at 333. See also Associated Press, "State Finds Room for Improvement in Drug Team" The [Louisville, Ky] Courier Journal, Sept. 5, 1993 (citing a state report on a Paducah, Ky. Multijurisdictional task force that criticized the task force for making reverse stings "standard operating procedure."
117. Id. at 328
118. JRSA, Five Year Review, supra note __, at 23. The report provides figures showing an 89% increase in asset seizures by task forces between 1988 and 1992, noting that such seizures "provide resources to task forces that have experienced decreased funding." Id. at 9.
119. Smith, Forfeiture, at Sec. 1.01, p. 1-14 (Release 16, in June, 1997 ed.)..
120. Richard Miniter, Ill Gotten Gains, Reason p. 34 (Aug.-Sept. 1993).
121. See the Department of Justice manual concerning racketeering forfeitures, which notes that a "preliminary investigation to determine what property would be subject to forfeiture may be required simply in order to obtain Departmental authorization for a RICO or CCE prosecution." David Smith and Edward Weiner, "Criminal Forfeitures Under the Rico and Continuing Criminal Enterprise Statutes," a manual of the Criminal Division of the Department of Justice (1980), at 7.
122. Jerrico, supra note ---, at 249. In the situations described above, prosecutorial discretion is influenced by two related, arguably improper factors: the assets of the potential defendant and, more directly, the prosecutors financial stake in bringing the prosecution. Targeting suspects according to these factors may violate the due process right to an impartial prosecutor enunciated in Jerrico. But prosecutorial treatment based on the wealth of the defendant also implicates a different line of cases based on the equal protection guarantee. We take each constitutional claim in turn.
The due process right to an impartial prosecutor. There are three questions that a court must address in order to resolve a due process challenge to prosecutions motivated by the financial rewards available through forfeiture: (1) Is financial self-interest constitutionally barred from prosecutorial consideration? (2) Must a defendant selected on this basis show prejudice in order to obtain a remedy? (3) If so, what constitutes such prejudice?
On the first issue, Jerrico's reasoning makes clear that prosecutions selected according to the prospect of law enforcement enrichment may constitute an improper factor biasing the charging decision if they do not merely "stimulate officials to do their jobs" but bias them towards unjust prosecutions or excessive penalties. Jerrico at 249-50. As the Supreme Court noted in its strong admonition in Berger v. United States, 295 U.S. 78, 88 (1935), "[t]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." We note, however, that the Supreme Court has afforded prosecutors substantial deference in its charging decisions; for example, in Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Court upheld harsher prosecutorial treatment in response to the defendants rejection of a plea bargain. Bordenkircher allowed prosecutors broad discretion, while noting that there are constitutional limits upon its exercise. Id. at 364-65. While the plea bargaining tactics at issue did not cross these limits according to the Court, the same should not be said of prosecutions selected according to the financial advantages they offer the prosecuting attorney's office, which are tied neither to the defendant's culpability or to any exigencies of the criminal justice system.
Second, must the defendant show he suffered prejudice from the corrupted decision? Suppose a defendant clearly establishes that the prosecutor stood to benefit financially from her conviction. If she would have been prosecuted anyway and suffered the same disposition, and if she is guilty of the charges, does her lack of prejudice preclude a due process claim based on this conflict? It would seem that the conflict must have played some role in prosecutorial decision-making in order to constitute an "impermissible factor" at all. Against this one might argue that not all "factors" are necessarily dispositive, so a defendant who would have been treated the same absent the conflict should still have a claim; or that the language from Jerrico, quoted above, conspicuously does not enunciate a requirement of prejudice; or that the bright line rule applied to some conflict situations should be applied here, because of the practical difficulties in tracking agency decision-making and acquiring proof that a potentially corrupting factor was actually considered.
Third, assuming a showing of prejudice is required, what constitutes sufficient prejudice? If a guilty defendant would not otherwise have been prosecuted or treated as harshly, this should be entirely sufficient to meet any prejudice requirement. Although the Bordenkircher opinion held that the prosecutor has broad discretion as to whom to prosecute, it did acknowledge that some factors are impermissible even where probable cause to indict exists. The Bordenkircher and Jerrico decisions clearly contemplate that certain arbitrary or vindictive prosecutorial decisions cannot be immunized by the fact that absent the factor, the defendant could have been properly prosecuted. Thus, any loss of even handedness in prosecutorial treatment should be found to entail cognizable prejudice (whether in investigation, charging, plea bargaining, granting of immunity, challenging evidence at trial, or other exercise of discretionary power).
The equal protection right against selective prosecution: The right to equal protection of the laws, rooted in the Fifth and Fourteenth Amendments, provides a distinct challenge based not on the prosecutors conflicting interests but on his selecting defendants according to their assets. Imagine a prosecutorial policy that mandates targeting only asset-rich defendants; or a policy (equally forfeiture-driven, but at a different stage of prosecution) targeting poor defendants by mandating more lenient plea bargains for those wealthy defendants who agree to forfeit their assets. Would such selective prosecutions violate the equal protection guarantee?
The equal protection right applies not merely to the laws as written but to their enforcement, Yick Wo v. Hopkins, 118 US 356 (1886), and therefore provides a defense to selective prosecutions. But because prosecutors with scarce resources are necessarily selective in whom they prosecute, the salient question is whether the prosecutor strayed beyond constitutional bounds in exercising his discretion. Equal protection cases have required defendants to show that other equally culpable violators have not been prosecuted and that this disparate treatment was "deliberately based on an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962). Where a prosecutor has selected targets according to their wealth and the resulting group does not constitute a "suspect class" entitled to strict scrutiny, see San Antonio Independent School Dist v. Rodriguez, 411 U.S. 1, 25, a court will have to decide whether this classification is arbitrary or whether it "rationally furthers some legitimate, articulated state purpose and therefore does not constitute invidious discrimination." Id. At 17; Cleveland v. Cleburne, 476 US 432, 446 (finding that the retarded do not constitute a suspect class entitled to strict scrutiny, but must show that the classification is not "rationally related to a legitimate governmental purpose.") As the facts above show, a court would have more than sufficient grounds to rule that (1) fund raising may not be the overriding objective of prosecutorial decisions about whom to prosecute, and (2) selection by wealth is not rationally related to any legitimate objective of law enforcement, such as deterrence or retribution.
As with the due process challenge, any equal protection claimant confronts the judiciarys reluctance to review prosecutorial decisions, Wayte v. United States, 470 U.S. 598 (1985), and must rebut a presumption that prosecutors have properly discharged their official duties. United States v. Armstrong, 116 S. Ct. 1480 (1996), citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). But some courts have nevertheless proved receptive to arguments that particular enforcement policies or decisions could not be related to a legitimate law enforcement purpose. See, e.g., Esmail v. Macrane, 53 F 3rd 176 (7 Cir., 1995)(selective enforcement against an individual, where motivated by personal malice, may violate equal protection); United States v. Robinson, 311 F. Supp. 1063 (W.D. Mo. 1969)(finding the enforcement of a privacy statute against private detectives but not public officials is impermissibly arbitrary); Olshock v. Village of Skokie, 541 F. 2d 1254 (7 Cir 1976)(equal protection abridged when policemen were disciplined differently depending on whether they were represented by counsel); People v. Acme Markets, Inc., 37 NY 2d 326 (1975)(finding equal protection abridged when Sunday closing laws were enforced upon complaints which reflected private motives).
123. See, e.g., 28 U.S.C. Sec. 991-998. This law, the Sentencing Reform Act of 1984, abolished parole and established a Sentencing Commission with the mandate of promulgating sentencing guidelines. The Sentencing Commission then removed the traditionally broad sentencing discretion from the trial judge, substituting a precise grid by which a determinate sentence is calculated. For example, the Guidelines provide particular points, corresponding to time to be served, for robberies committed with the use of a gun (plus 6), with an express death threat (plus 2), which was designed to obtain a controlled substance (plus 1), and so on. 18 U.S.C. app. Sec. 2B3.1 (1996)(robbery). These aggravating factors, which increase the base level of the robbery offense (20) by the numbers provided, are respectively subsections (b)(2)(B), (b)(2)(F), and (b)(5).
124. Drug cases are theoretically subject to assorted mandatory minimum sentences promulgated by the Anti-Drug Abuse Act of 1986, and by the parallel incarceration periods mandated by the Guidelines sentencing grid. However, if the prosecutor wishes to evade these sentences in service of an appealing plea bargain, he may obtain a much lower sentence in one of two ways. He may file a motion pursuant to 18 U.S.C. 3553(e), allowing the court to reduce the sentence for a defendant who has "substantially assisted" in the prosecution of others; or he may tell the federal probation department that the defendants crime involved a lesser quantity of drugs than was actually the case.
125. According to Eric Sterling, Director of the Criminal Justice Policy Foundation, only 11 percent of drug offenders in federal prisoners are high-level traffickers, while more than 50% are low-level. Derrick Jackson, Our Fraudulent War on Drugs, Boston Globe, Sep. 13/96, at A27. First Circuit Chief Justice Juan Torruela has noted that in his experience, "penalties for drug trafficking are imposed on individuals other than those most culpable . . . The 'big fish," if caught at all, are able to work out deals with the government which may leave them with light sentences or even without any prosecution. This result . . . is essentially an immoral outcome which tarnishes our entire judicial system." Juan Torruella, The 'War on Drugs': One Judge's Attempt at a Rational Discussion, 14 Yale J. on Reg. 195, 256 (1997).
Relatively harsher penalties for the "mules" often result because they usually have neither forfeitable assets nor useful information to trade for prosecutorial leniency. There are other factors as well, however. For example, in the drug area passions run high enough to taint the sentencing laws themselves, not merely their application. One well-noted example is the disparity between crack and cocaine mandatory sentences (100:1), despite the fact that crack and cocaine are identical chemically and possess the same addictive and abusive potentials. Because Black Americans are more likely to use crack, and White Americans cocaine, the effect of this has been to place huge numbers of the Blacks in jail while equally culpable Whites remain unincarcerated. Noting these facts, Attorney General Reno and "Drug Czar" Barry McCaffrey have urged that this disparity be reduced to 10:1 by invoking the five year minimum mandatory sentence on defendants possessing either 25 grams of crack (instead of the current 5 gram threshhold) or 500 grams of powder cocaine. Christopher Wren, "Reno and Top Drug Official Urge Smaller Gap in Cocaine Sentences," New York Times, July 22, at A1 & A12. Another critic of the 100:1 disparity, Suffolk County, Massachusetts District Attorney Ralph Martin, says that it has "encouraged federal officers to treat street-level crack dealing as a major offense, draining resources away from major drug kingpins." Adrian Walker, "The Drug War: Two Wrongs to Right" Boston Globe, July 27, 1997, E1 & E2, at E2.
126. The forfeited assets were then distributed among the prosecutor's office and participating law enforcement agencies. Martin Haines, Prosecutors and Criminals Sharing Wages of Crime, New Jersey Law Journal, Oct. 19, 1992, at 17.
127. Dick Lehr and Bruce Butterfield, "Small Timers Get Hard Time," Boston Globe, Sept. 24, 1995, at 31.; Money at Root of Deals, Boston Globe, Sep. 25, 1995, at 1, 6. Both articles were parts of a four part series entitled "Criminal Justice/Overdosing on the Drug War," published by the Boston Globe from Sep. 24 through Sept. 27, 1995.
The investigation, by Boston Globe reporters, included a comprehensive examination of prosecution records from the four largest Massachusetts counties, as well as numerous case studies comparing defendants who were similarly situated except for their assets. For example, one defendant who sold cocaine to lower-level dealers was able to reduce a "mandatory" 15 year sentence to 2 Jan. 2 years served; another defendant -- less culpable in that undercover agents ran him through five relatively small drug buys before arrest in order to reach a level of quantity which would qualify him for a 10 year sentence -- received the full 10 years. The difference was that the first defendant had $460,000 in forfeitable bank deposits to offer in lieu of hard time. "Money at Root of Deals" at 6.
In another, more celebrated case brought in Florida, the defendant escaped a life sentence by forfeiting yachts, his home, and millions of dollars in cash. United States v. Claude Duboc and John Knock, Docket # 1:94CR01009, Fed. Dist. Court of Fla. in Gainesville. This case attracted substantial attention, initially because attorney F. Lee Bailey was incarcerated for failing to turn over client properties the government claimed as its own. But a byproduct of the media's interest was that the public was given "a rare look at the usually secretive world of plea bargaining in big drug cases, [opening] a window on a growing controversy in narcotics prosecutions in Florida and nationally: how rich defendants like Mr. Duboc use the proceeds of their crimes to bargain for lighter sentences." Mireya Navarro, When Drug Kingpins Fall, Illicit Assets Buy a Cushion," N.Y. Times, Mar. 19, 1996, at A1. See also John Gibeaut, F. Lee Bailey's New Digs, ABA Journal at 25 (May 1996)(quoting a former prosecutor that the case "gives forfeiture a bad name. The point of forfeiture is to strip assets from the bad guys, not to make money for the government.
128. Lehr and Butterfield, Money at Root of Deals, supra at n. ---, at 6.
129. Libretti v. United States, 116 S.Ct. 356, 133 L. Ed. 2d 271, 516 U.S. ___ (1995). Libretti refutes one claim that is sometimes made, that prosecutorial conflicts are not dangerous because so long as there is an impartial tribunal down the line, any abuses can be corrected. So does the Jerrico opinion, only more explicitly. See Jerrico, supra note ---, at 249-50. ("the decision to enforce -- or not to enforce -- may itself result in significant burdens on a defendant . . . even if he is ultimately vindicated in an adjudication."). Cf. Ward v. Village of Monroeville, 409 US 57, 61-2 (1972)(opportunity for trial de novo does not obviate the need for an impartial tribunal at the first tier).
130. Libretti, supra note --- at 116 S.Ct.370 (Stevens, J., dissenting) ( "No matter what a defendant may be willing to pay for a favorable sentence, the law defines the outer boundaries of a permissible forfeiture. A court is not free to exceed those boundaries solely because a defendant has agreed to permit it to do so . . . .Were a court to do otherwise, it would permit the parties to define the limits of its power.")
131. Although wealthy defendants may be targeted in the investigatory stage, in the plea bargaining context the ultimate losers are the defendants without assets to trade for time. The harsher treatment they receive is a direct result of the prosecutors conflicting financial interest, and thus should be cognizable under the due process clause. An additional argument stems from the recent, unanimous Supreme Court decision in Bracy v. Gramley, __ U.S. __ (June 9, 1997), which held that a corrupt judge's favoritism towards other defendants who bribed him may have violated the petitioners right to an impartial trial by giving the judge a motive to camouflage his lenient treatment with a conviction: it would violate due process if the judge "was biased in this...compensatory sense...to avoid being seen as uniformly and suspiciously 'soft on criminal defendants." Id. at ---.
132. Report on the Death of Donald Scott, Michael D. Bradbury, District Attorney, Office of the District Attorney, County of Ventura, State of Calif. 37-41 (Mar. 30, 1993) [hereinafter Scott Report] Ariel photographs of the ranch did not show any marijuana plants. But Charles Stowell, a federal D.E.A. agent, took another flight over the ranch and made the claim, hardly plausible under the circumstances, that he was able to identify about 50 marijuana plants by their "distinct color". (Stowell viewed the ranch from an altitude of 1000 feet without binoculars, The usual procedure of photographing the suspect patch was not followed. Nor did the patch's relatively small size conform to the informant's report.) Then the U.S. Border Patrol conducted two ground reconnaissance missions onto the Scott property. These searches -- which could not be justified under Border Patrol's mandate to enforce federal immigration laws -- found no evidence of marijuana cultivation.
133. Scott Report , supra note ---, at 9-12.
134. Scott Report , supra note ---, at 37-41.
135. The report found that the supporting affidavit asserted falsely that ground surveillance had confirmed the presence of the plants and that the agent had used binoculars, failed to reveal the unfavorable surveillance results, and contained numerous other misleading statements. Scott Report at 42.
136. Scott Report supra note at 62.
137. Scott Report supra note at 16. Although the ranch was situated in Ventura County, the report noted that the Ventura County Sheriff's Department was not included in the investigation or the raid, perhaps in order to avoid sharing the proceeds with it. Id. at 50-52
138. John Adams, a student of the writs of assistance cases, wrote that public outcry against the writs of assistance was one of the sparks leading to American independence, as discussed in M.H. Smith, The Writs of Assistance 251-256 (1978) (hereinafter "Writs"). For discussion and additional authorities on this point see M. Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease, 68 S. Cal. L. Rev. 1, 15 (1994)..
139. See Smith, Writs, supra note ---, at 13 ("the acts of navigation and trade gave one-third each to the king, the governor of the particular colony, and the customs man"). Informants were commissioned by customs officers; newspaper advertisements seeking informants promised that they would be "handsomely rewarded and their names concealed." Id. at 128. Condemnations were extremely profitable for both, not least because smugglers chose not to defend rather than reveal their identities. Id. at 13. See also Nelson B. Lasson, History and Development of the Fourth Amendment to the U.S. Constitution 57 (DaCapo Press, 1970) (quoting Lieutenant Governor Thomas Hutchinson's remark that his Governor, Bernard, "was very active in promoting seizures for illicit trade, which he made profitable by his share in the forfeitures").
140. Writs of assistance were sought by people in need of money, and disreputable men were hired as informants. Smith, Writs, supra note ---, at 128. Because seized contraband was unlikely to be disputed in court, customs officers could often falsify the inventory of seized items, or as the Boston Gazette reported it on Feb. 16, 1761, "goods [were] catalogued by false names in order that another disposition of them might be made". Id. at 170. For discussion on analogous problems today, see pp.---
141. Smith, Writs, supra note ---, at 562-3 (James Otis tirade against lawless searchs under the writ)., For discussion on the analogous problem today, see pp. ---
142. The laws were enforced selectively, leaving alone close merchant associates of the customs officers. See Smith, Writs, supra note ---, at 101. For discussion on the analogous problem today, see pp. ---
143. Smith, Writs, supra note ---, at 563. An earlier English analogue, the "Reward Statutes" of 1692 which paid informants for information leading to convictions, was discontinued in 1754 after several innocent people were executed on false information provided for the reward money. See John Langbein, Shaping the 18th Century Criminal Trial: A View from the Ryder Sources, 50 Chi. L. Rev. 1, 106-14 (1983). For discussion on the analogous problem today, see p ---
144. The procedural advantages the Crown enjoyed resemble those confronting modern day forfeiture claimants. If the property was used in commerce, then each day spent fighting to establish a claim was another day's business loss. Consequently in colonial admiralty court officials and property owners struck deals that placed the owner in the peculiar position of paying the state for the return of property. (Because juries were unsympathetic, the Crown had transferred jurisdiction to admiralty judges in 1696). There is one case of a subject who, having made such a bargain to get back his ship and cargo, sued at common law trespass for damages and prevailed. See Smith, Writs, supra note ---, at 181. For discussion on similarly coercive plea bargains enforced today, see pp. ---
145. Article, probably by James Otis, denouncing the writs of assistance in Boston Gazette, Jan. Apr. 1762, reprinted in Smith, Writs, supra note ---, at 565-566.
146. John Adams, quoted in Nelson Lasson, The History and Development of the 4th Amendment to the U. S. Constitution 59 (1937).
147. This is particularly so because the most obvious legislative reform -- requiring forfeited assets to be deposited in the general fund rather than funneling them to the seizing agency -- would eliminate the destructive incentives we have described without reducing whatever benefits the forfeiture law can deliver -- whether measured in terms of drug enterprises shut down, contraband seized, drug dealers deterred, or even the conversion of drug proceeds into government revenue. We address this and other potential legislative reforms infra at Section IV.
148. See supra note ---.
149. Although forfeiture may have been intended for prosperous kingpins and large enterprises, many if not most law enforcement agencies have decided that it is most advantageous to pursue the more numerous low level dealers or users. See, e.g., "Seizure Laws Have Been Wheels of Fortune for Tacoma Police," The [Tacoma] News Tribune, June 20, 1994 at A1 (only 16% of 1,000 seizures in Washington from 1992-94 involved more than $1,000, and 33% involved $100 or less); Inequity Seen in Drug Forfeiture Law, New York Times, Sept. 3, 1993 at A17 (94% of the 6,000 forfeiture cases in 1992 involved less than $5,000); of 6,000 California. Small seizures have the twin advantages that the forfeiture opportunities are virtually endless, and claimant challenges to them are impractical because they would cost more than the amounts involved. See also JRSA, Five Year Review, supra note ___, at 23 (suggesting task force members consider "
150. Schneider & Flaherty, War on Drugs Ruins Law Abiding Citizens, Pittsburgh Press, Aug. 11, 1991, at A1, A4 (reporting a nationwide survey of forfeitures over a ten month period). Another investigation of Volusia County, Florida forfeitures found that no charges were filed in three out of four forfeitures. Jeff Brazil and Steve Berry, Tainted Cash or Easy Money?, Orlando Sentinel Tribune, June 14, 1992, at A1.
151. See Miller and Selva, supra note --- at 313 (concluding that the funds available through asset forfeiture caused police to concentrate on less serious cases and did not result in diminishing the quantity of drugs on the street.
152. Nelson, supra note __, at 1327.
153. Smith, Forfeiture, supra note ---, at sec. 1.01, p. 1-14 (Release 20, in June, 1997 ed.). See also Charles Rangel, "Reagan's Zero Tolerance is a Zero Drug Policy," Newsday, June 28, 1988, at 6.
154. The yacht was later returned to its absentee owner. Smith, Forfeiture, supra note --- at Sec. 1.01, p. 1-15, n. 39 (Release 20, in June, 1997 ed.).
155. Some have criticized the drug war as geared to protecting suburbia and the middle class while failing to address the more destructive problem in the inner cities. Robert Stutman, formerly head of the DEA New York office, notes that "[b]efore 1966 we concentrated purely on heroin and nobody paid attention. The predominant attitude among most Americans, and certainly most agents, was, 'Who cares who sells it as long as only black people are using it?' . . . [But then drugs began] leaving the ghetto, so all of a sudden they were becoming understood as a truly American problem." Robert Stutman and Richard Esposito, Dead on Delivery: Inside the Drug Wars, Straight from the Street (Warner Books, 1992). Stutman and Esposito bemoan the emphasis on law enforcement to the exclusion of treatment, education and other non-criminal approaches.
156. See, e.g., Steven Wistosky, Crackdown: The Emerging 'Drug Exception' To The Bill of Rights, 38 Hastings L.J. 889, 898 (1987)(concluding that drug enforcement is now the "top priority, indeed the organizing focus" of the federal criminal justice system).
157. Directive # 89-1, June 21, 1989 memorandum from Acting Deputy Attorney General Edward S. G. Dennis, Jr., to, inter alia, all U.S. Attorneys, contained in DOJ Asset Forfeiture Manual, V. 3. See also Directive 91-7, "Asset Forfeiture Talking Points", May 1991, prepared by Executive Office for Asset Forfeiture of the Justice Department ("The Attorney General has made asset forfeiture one of the Department of Justice's highest law enforcement priorities.")
158. The reason for this lies in the nature of drug law enforcement. Typically the officer surveils a busy location where drug activity is known to occur. For each drug sale he observes, he radios his strategically located fellow officer who then arrests the buyer after he has left the location. The officer can continue arresting buyers for hours, undetected by the drug seller. At the end of his shift he receives overtime pay for the time it takes to process the arrests and (since most drug arrests occur at night) for court time the next morning. Moreover, because there are few triable issues when a suspect is caught selling or possessing drugs, most drug cases are disposed of quickly by a plea bargain, Mollen Commn Report at 37, and the officer may be able to claim a day's overtime pay for a brief appearance in court. See, e.g., Mark Bowden and Mark Fazlollah, Rogue Cops, Philadelphia Inquirer, Sep. 11, 1995, at A01 (Part II of series).
159. Mark Bowden and Mark Fazlollah, Rogue Cops, Philadelphia Inquirer, Sep. 11, 1995, at A01, (Part II of series). Bowden and Fazlollah report that "every collar on the night shift afforded the opportunity of overtime pay. A day in court could mean $100 to $200 in extra earnings. That year [Officer Baird] earned nearly half again as much in overtime as his salary_.With pressure from all quarters to do something about drugs, things like arrest totals and conviction rates offer at least paper proof that the battle is being waged."
The benefits which flow from high arrest rates have been condemned for encouraging false arrests, and sometimes perjury as to the identity of the arresting officer ("trading collars for dollars"). Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedure of the Police Department, Anatomy of Failure: A Path for Success (July 7, 1994) at 39 (hereinafter Mollen Commission Report); Richard Emery, "The Even Sadder New York Police Saga", New York Times, Dec. 12, 1987 (concerning N.Y. transit police arrest quotas). They also promote incarceration over treatment, prevention, and other problem solving approaches. See Andrew Schneider and Mary Flaherty, "Presumed Guilty: The Law's Victims in the War on Drugs," Reprinted from the Pittsburgh Press articles of Aug. 11 - 16, 1991 (p. 35 of reprint)
160. For example, between 1980 and 1990 the number of federal drug convictions rose more than 300%, almost ten times the increase in non-drug convictions. Douglas C. McDonald et al., Department of Justice, Federal Sentencing in Transition, 1986-90, at 4 (1992). See also Proposed Long Range Plan for the Federal Courts 2, 11 (March 1995), prepared by the Committee on Long Range Planning of the Judicial Conference of the U.S. (noting that from 1972 to 1994 federal drug prosecutions rose from 18% to 40% of the federal criminal dockets, and that this "has transformed the work of the federal district courts"); Dan Baum, "The Drug War on Civil Liberties", Nation 2 (June 29, 1992)(reporting that Chief Justice Rehnquist chastised the Justice Department for burdening federal courts with petty drug cases); Katherine F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135 (1995)(concluding that mushrooming federal drug prosecutions are overwhelming the federal courts).
161. See, e.g., "Treatment: Effective (But Unpopular) Weapon Against Drugs," RAND Research 3, 3 (Spring 1995)(reporting that treatment is 7 times more cost-effective than supply control programs in reducing cocaine consumption).
162. Of the federal funds allocated to the drug war, the fraction devoted to law enforcement and interdiction has generally hovered around 2/3rds. Compare the Bush administration statistics, reported in Michael Massing, What Ever Happened to the 'War on Drugs', New York Review of Books, Jun. 11, 1992, at 42 ("...two thirds, or more than $8 billion goes for law enforcement and interdiction," citing the White House, National Drug Control Strategy, Budget Summary, Jan. 1992, at 200) with the Clinton 1998 proposed budget, reported in Robert Dreyfuss, Hawks and Doves, Rolling Stone, 8/7/97, p. 42 (reporting a percentage of 66%).
163. Drug Policy Surges as a Campaign Issue, N.Y. Times, Sep. 17 1996, at A1, A18. (reporting that funding for the D.H.H.S.'s Substance Abuse and Mental Health Administration drug prevention program, and for Administration's treatment programs, were cut in 1996 to $89 million for each -- a cut of about 60% from 1995 which resulted in the closing of 79 prevention programs and 33 treatment programs).
164. The monetary and career benefits that flow to officers from high arrest rates have been condemned for promoting incarceration over treatment, prevention, and other problem solving approaches. Like forfeiture except at more directly individual level, this incentive juxtaposes the officer's self-interest against non-criminal, community-based alternatives to arrest. See supra fn. ---.
165. The prison-dependent economic sector includes workers and industreies servicing existing prisons, and many more businesses that will share in the $10 billion to be spent in prison construction over the next five years pursuant to the Crime Control Act of 1994, 42 U.S.C. Sec. 13708(a)(1)(1996).
166. For example, a survey revealed that an unsurprising 90% of task force commanders thought task forces should be a top priority for funding; 64% said they should have priority over education or treatment programs, compared to 17% who thought they should have less priority. Task Force Commander Survey, supra note ---, at 10 & Exh 6. See also Robert Dreyfuss, "Hawks and Doves," Rolling Stone Magazine, 8/7/97, at 44, quoting the former police chief of Kansas City, Missouri, Joseph McNamara, as saying that he long ago concluded that the drug was "is irrational, racist, unAmerican and unsuccessful" and wrote a dissertation that "was so critical of our drug policy that I never published it. If I had, I never would have had a career in law enforcement."
167. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later 10, 23 (The Sentencing Project, Oct. 1995). Between 1986 and 1991 there was an 828% increase in black, non-Hispanic females incarcerated for drug offenses in state prison. Id. at 20. In California, the growth rate of incarcerated drug offenders was even higher: 1500% during the 1980's. Zimring and Hawkins, Prison Population and Criminal Justice Policy in California, 32-35 (1992).
168. Mauer and Huling, 10, 23. The authors report that the average length of time served by drug offenders increased 50% between 1986 and 1992, from 22 months to 33 months. They also note that a drug arrest in 1992 was 4 times more likely to result in incarceration compared to 1980.
169. Michael Sniffen, "U.S. Reports 1.6 Million in Nations jails by end of 95," Boston Globe, Aug 19, 1996, at A3 (quoting the Department of Justice Bureau of Justice Statistics Report of Aug. 18, 1996). The Globe also reported that one of every 167 Americans is incarcerated, compared with 1 in 320 a decade earlier. 5.3 million people, almost 3% of the adult population, are now in prison, on parole, on probation, or otherwise supervised by a criminal justice agency. U.S. Dept. of Justice, Press Release: Probation and Parole Population Reaches Almost 3.8 Million (1996).
170. Byrne grants do not pose the same conflict of interest problems that forfeiture laws do. When Byrne funded task forces target drug offenders they are not redefining their goals for financial self-interest; drug enforcement is the goal that Congress has assigned to them. However, as the Reese case following demonstrates, providing soft money for drug law enforcement creates incentives that similarly divert police officers from the proper execution of their jobs.
171. 2 F.3d 870 (9th Cir., 1993).
172. Id. at 874.
173. Id. Broussard also told his men that "a lot of 'dirty' drug money would be passing through their hands, and that it would not really matter if they kept some of it for themselves" because the suspects would be in no position to complain. Id.
174. Jeff Brazil and Steve Berry, Tainted Cash or Easy Money?, Orlando Sentinel Tribune, June 14, 1992, at A1. Blacks and Hispanics constituted 82% of the drivers searched, but only 5% of the drivers on the patrolled highway. "Color of Driver is Key to Stops in I-95 Videos," Orlando Sentinel, Aug. 23, 1992 at A1.
175. See, e.g., David Heilbroner, The Law Goes on a Treasure Hunt, New York Times, Dec. 11, 1994 at Section 6, p. 70. Heilbroner reports that police in the small town of Sulpher, Louisiana seized about $5 million in four years, more than the entire New Orleans police force. "Typically, a speeder is pulled aside. When a lot of cash is found on him and his explanation is suspect, a drug dog is summoned. If the dog smells narcotics, the police seize the money." As detailed supra at note ---, most paper currency is now contaminated and tests positive for cocaine.
176. $60 Million Theft by Sheriffs Deputies Alleged, Los Angeles Times, April 1, 1993 at B1 (quoting L. A. Sheriffs sergeant Robert Sobel, "My team seized about $10 to $15 million, and none of it was straight...[they were] legal street robberies."]
177. Dateline NBC, "Probable Cause? Policemen in Louisiana harass motorists and seize their property for no apparent reason," Jan. 3, 1977 at Westlaw 5, 18. Although such traffic stops were pretexts for forfeiture fund-raising, a recent Supreme Court decision largely excludes ulterior motives from Fourth Amendment analysis by holding that the existence of probable cause renders such motives irrelevant. Whren v. United States, 116 S. Ct. 1769 (1996)(rejecting as irrelevant defendants claim that vehicle stops targeted blacks). For a critique of the Courts analysis, see M. Tracey Maclin, "Race and the Fourth Amendment," 51 Vand. L. Rev. ___ (forthcoming, Mar. 1998).
178. See infra note ---.
179. See supra note 1.
180. This clause provides: "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."
181. Government funds coming into the hands of an officer or agent of the United States must be paid immediately into the Treasury (31 U.S.C. Sec. 484, 3302(b)(1982)). See also 18 U.S.
182. 31 U.S.C. Sec. 1341(a)(1)(1982)("An officer or employee of the United States Government may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; or involve [the] government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.")
183. According to the General Accounting Office, "The prohibition against augmentation is a corollary of the separation-of-powers doctrine. . . . Restated, the objective of the theory against augmentation of appropriated funds is to prevent a government agency from undercutting the congressional power of the purse by circuitously exceeding the amount Congress has appropriated for that activity. Sec. 51 Comp. Gen. 506, 507 (1972). Principles of Federal Appropriations Law, United States General Accounting Office, Office of General Counsel, pp. 5-62. Statutory counterparts to this doctrine include 31 U.S.C. sec 1342 (1982)(prohibiting government the acceptance of voluntary service except in defined emergencies) and 18 U.S.C. Sec. 209 (1982)(barring supplementation of government salaries with third party funds).
184. Supreme Court cases articulating this principle include Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Bradley v. United States, 98 U.S. 104, 106-08 (1878); Knote v. United States, 95 U.S. 149, 154 (1877). According to the General Accounting Office, "the effect of 31 U.S.C. Section 484 is to ensure that the executive branch remains dependent on the Congressional appropriations process. . . [It] emerges as another element in the statutory pattern by which Congress retains control of the public purse under the separation of powers doctrine. Sec. 51 Comp. Gen. 506, 507 (1972). Principles of Federal Appropriations Law, United States General Accounting Office, Office of General Counsel, pp. 5-65)
185. 28 U.S.C. 881(e)(2)(B); 28 U.S.C. 524(c)(1).
186. That is, an exercise either directly or through a constitutional delegation to the Department of Justice. For reasons that will become clear in the balance of this section, the issuance of this kind of blank check can hardly be considered a direct appropriation since the agency gets to determine the size of its budget. It is rather a delegation, and because it is a delegation of basic legislative power, an unconstitutional one. See text infra at notes ---.
187. See, e.g., Mistretta v. United States, 109 S. Ct. 647, 677 (1989)(Scalia, J., dissenting)("[T]he basic policy decisions governing society are to be made by the Legislature. Our Members of Congress could not, even if they wished, vote all power to the President and adjourn sine die.") Article I, which provides that "all legislative powers herein granted shall be vested in a Congress," prohibits the transfer of this power.
188. See infra note ---.
189. See also Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) at 685 (Rehnquist, C.J., concurring)(the non-delegation doctrine is designed to ensure "that important choices of social policy are made by Congress") and at 717-18, n. 30 (Marshall, J., dissenting)(same)
190. Industrial Union, supra note ---, at ---; J. W. Hampton and Co. v. United States, 276 U.S. 394, 409 (1928); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935).
191. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1934)(finding the National Industrial Recovery Act unconstitutional in delegating to the NRA broad, standardless authority to establish codes of fair competition); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)(striking down standardless statute granting the President discretionary power to prohibit interstate transportation of hot oil); Carter v. Carter Coal Co., 298 U.S. 238 (1936)(striking down a delegation of legislative authority to price-setting boards elected by coal producers).
192. National Cable Television Association v. United States, 415 U.S. 336, 341 (1974)(citing Schechter, and narrowing the criteria enacted to govern the FCC in order to avoid an unconstitutional delegation of the power to tax); Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980)(narrowing the discretion of the Secretary of Labor in promulgating OSHA standards to avoid unconstitutional delegation).
193. Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).
194. Id. at ---. The plurality opinion construed the Secretary's delegated authority narrowly to avoid unconstitutionality, placing the challenged regulation beyond the legislative delegation; while Justice Rehnquist found the statute itself an unconstitutional delegation of legislative power. See also American Textile Manufacturer's Institute v. Donovan, 452 U.S. 490, 545-49 (1981)(Justice Rehnquist, joined by Chief Justice Burger, dissenting on grounds that the OSHA standard was promulgated pursuant to an unconstitutional statute which delegated lawmaking power.)
195. INS v. Chadha, 462 U.S. 919 (1983).
196. South Dakota v. United States Department of the Interior, 69 F.3d 878, 885 (1995). Following this decision, the Government changed its position and promulgated a procedure for judicial review of the Secretary's decisions; a preamble to the regulation conceded that the Secretary was precluded from taking the land at issue in the Eighth Circuit case. Based on this reversal, the Supreme Court granted the government's petition for certiorari, vacated the judgment, and remanded the case to the Court of Appeals with instructions to remand the case to the Secretary to reconsider his administrative decision. Department of the Interior v. South Dakota, -- U.S. --, 117 S. Ct. 286 (1996). Justice Scalia, joined by Justices O'Connor and Thomas, dissented, arguing that to grant certiorari, vacate and remand because "the Government, having lost below, wishes to try out a new legal position" is unfair. See also South Dakota v. United States Dept. of Interior, 1996 WL 743501, -- F. 3d --, (8th Cir., 1996)(remanding to Secretary of Interior for reconsideration pursuant to Supreme Court order).
197. Byrd v. Raines, 1997 WL 169409 at 11, -- F. Supp. -- (D.D.C., 1997)("[E]ven if Congress may sometimes delegate authority to impound funds, it may not confer the power permanently to rescind an appropriation or tax benefit that has become the law of the United States. That power is possessed by Congress alone, and, according to the Framers' careful design, may not be delegated at all.") The Line Item Veto Act, 2 U.S.C. Sec. 691 (1996), allowed the President to sign a bill into law and then "cancel" any dollar amount of discretionary budget authority, any item of new direct spending, and any limited tax benefit. Id. at Sec. 691(a). Cancellation would take effect unless Congress reenacted a canceled item within thirty days of Presidential notification. Id. at Sec. 691(d)(b), (c)(1).
198. See Raines v. Byrd, 117 S. Ct. 2312, 2322 (1997). Seven Justices refused to address the merits because the President has not yet exercised the veto. (He did so for the first time on August 11, 1997.) Justices Stevens and Breyer dissented, finding the threat of a veto sufficient to restructure the relationship between the branches. Justice Stevens, the only Justice to explicitly reveal his view on the merits, noted that he would find the law unconstitutional.
199. Industrial Union Dept., supra note ---, at --- (Rehnquist, concurring); Mistretta v. United States, 488 U.S. 361, 676 (1989)(Scalia, dissenting).
200. See, e.g., Russell Covey, Adventures in the Zone of Twilight: Separation of Powers and National Economic Security in the Mexican Bailout, 105 Yale L. J. 1311 (1996); David Schoenbrod, The Delegation Doctrine: COuld the Court Give it Substance?, 83 Mich. L. Rev. 1223 (1985); John Ely, Democracy and Distrust 132-134 (1980); Peter Aranson, Ernest Gellhorn and Glen Robinson, A Theory of Legislative Delegation, 68 Cornell L. Rev. 1 (1982); McGowan, Congress, Courts and Control of Delegated Power, -- Columbia L. Rev. 1119 (1977); Paul Gewirtz, The Courts, COngress, and Executive Policy-Making: Notes on Three Doctrines, 40 Law and Contemp Probs. 46, 49-65 (1976).
201. See, e.g., Alexander Hamilton, Explanation in 8 A. Hamilton, Works 122, 128 (H.C. Lodge ed. 1885) (Nov. 11, 1795) ("no money can be expended, but for an object, to an extent, and out of a fund, which the laws have prescribed"); Louis Fisher, Distribution Of Constitutional Authority: How Tightly Can Congress Draw The Purse Strings?, 83 A.J.I.L. 758 (1989) ("The Framers were familiar with efforts by English kings to rely on extra-parliamentary sources of revenue for their military expeditions and other activities....The rise of democratic government is directly related to legislative control over all expenditures."); 43 Op. Att'y Gen. 24 (1980) at 4-5 (stating Congress is required to determine the purposes and amounts of government expenditures); Kate Stith, Congress' Power of the Purse, 97 Yale L.J. 1343, 1352 (1988)("appropriations constitute legislative specifications of the powers, activities, and purposes -- what we may call, simply, "objects" -- for which appropriated funds may be used.") Stith provides a comprehensive analysis of Congress' obligations in exercising its appropriations power. See also 31 U.S.C. Sec. 1301(a)(1982)(appropriations "shall be applied only to the objects for which the appropriations were made except as otherwise provided by law." For an argument opposing this interpretation of the constitutional role of the appropriations process, see J. Gregory Sidak, "The Presidents Power of the Purse,", 1989 Duke L. J. 1162 (1989).
202. Stith, supra note ---, at 1345-46. Stith maintains that because Art. I, Sec. 8 enumerates Congress' powers, the appropriations clause in section 9 does not grant power but rather "affirmatively obligates Congress to exercise a power already in its possession." Id. at 1348. "Congress abdicates, rather than exercises, its power of the purse if it creates permanent or other open-ended spending authority that effectively escapes periodic legislative review and limitation." Id. at 1345. Stith's analysis builds on her conception of the appropriations process as effecting two constitutionally mandated principles, which she calls the Principles of the Public Fisc and of Appropriations Control. The former is the principle that all monies received from whatever source by any part of the government are public funds. The "Principle of Appropriations Control" prohibits expenditure of any public money without legislative authorization. Id. at 1345.
203. Kelley Shannon, "Seized Drug Money to be Used For Prisons," Houston Chronical (Sep. 28, 1989).
204. OPM v. Richmond, 496 U.S. 414, 428 (1989). The Court described this function as Sec. 9's "fundamental and comprehensive purpose." Id. In another legislative delegation case, this one involving the Presentment Clauses, the Court observed that "the purposes underlying the Presentment Clauses...must guide resolution of the question whether a given procedure is constitutional." Chadha, supra note ---, at 946.
205. A permanent appropriation "does not require repeated action by the Congress to authorize its use". U. S. Gen. Accounting Office of General Counsel, Principles of Federal Appropriations Law, 2-5 (1982).
206. See 31 U.S.C. Sec. 3123 (1982).
207. For example, a standing appropriation for social security payments was enacted by 42 U.S.C. Sec. 401-423 (1982) (Social Security).
208. The Anti-Deficiency Act establishes an exception for agencies to incur an obligation in advance of an appropriation if "authorized by law." 31 U.S.C. Sec. 1341(a)(1)(1982). Of course, a statute authorizing such advance expenditures must also comport with the constitutional requirements of the appropriations clause.
209. Stith regards the underlying substantive legislation establishing the entitlement, or authorizing the government to incur an obligation, as the "real appropriation for constitutional purposes." Stith, supra note ---, at 1382. "When Congress decides the substantive contours of the backdoor spending program, it decides, to a large extent, the proper funding level of the program....In each of these instances, the form of the actual legislative permission to draw funds from the Treasury is largely irrelevant, because the government's monetary obligation is based on previous legislative action....[Such backdoor] spending is consistent with the constitutional norm requiring Congress to control the public fisc as long as Congress clearly defines the activity being funded, provides a time limitation on the spending program, implicitly or explicitly decides the total amount of spending authority, and undertakes periodic legislative review. Id. at 1380, 1382.
210. The Miscellaneous Receipts Act requires all sums received by the government to be deposited in the Treasury, but Congress has legislated exceptions to this requirement, allowing certain agencies to establish revolving funds or retain fees or gifts. A revolving fund is designed for government enterprises designed to be at least partly self-sustaining, such as the Postal Service, the Federal Deposit Insurance Corporation, a government loan program or a Turnpike Authority. The activity of the agency is at least partly sustained by the income it produces. Apart from such dedicated revolving funds, Congress has also authorized certain agencies to retain the user fees it charges, see e.g. Independent Offices Appropriation Act of 1952, 31 U.S.C. Sec. 9701 and National Cable, supra note --- , or retain certain gifts, see e.g. 22 U.S.C. Sec. 2455(f)(1982)(USIA authority to receive and utilize conditional gifts). See also Stith, supra note 205, at 1365 - 81 (detailing exceptions to the dual requirements that all funds collected be deposited in the Treasury, and that all spending be pursuant to a specific appropriation.)
211. For related reasons, the Supreme Court construed the Independent Offices Appropriation Act, 1952, to permit the FCC to collect fees based only on the value of its services to the recipient, not on the public interest which might be served by the collection. The latter "if read literally, carries an agency far from its customary orbit and puts it in search of revenue in the manner of an Appropriations Committee of the House." National Cable, supra at note ---, at 341 (construing the statute to avoid abriding Art. I, Sec. 8, cl. 1, vesting Congress with the "power to lay and collect taxes.") Similarly, one important factor in upholding the delegation at issue in Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989), was that Congress limited the aggregate amount of pipeline user fees the agency could charge, and also specified that the fees be set according to "volume miles, miles, or revenue miles". Id. at 219.
212. See supra note 102.
213. See Stith, supra note 205, at 1383-84. Stith argues that budgetary oversight is especially important in areas where the Executive has a broad discretion in defining government policy, and points to federal prosecutions as an example. In this area, "the 'object' specifications in appropriations are necessarily broad...[and] the Executive bears primary responsibility for determining how and where to assert a federal presence. If Congress creates spending authority which is open-ended with respect to amount and duration...it effectively concedes any role in defining and constraining executive -- that is, governmental -- action." Id.
214. Legislative delegations have been found appropriate when necessary to avoid enmeshing legislators in "the sort of intricate, labor intensive task" better suited to administrators, Mistretta v. United States, 488 U.S. 361, 379 (1989)(upholding delegation to the U.S. Sentencing Commission); or because the legislature would necessarily speak in terms too general to suffice, see, e.g., American Power and Light Co. v. SEC, 329 U.S. 104, 105 (1946); or to provide more expeditious or flexible responses than Congress can manage, see, e.g., Zemel v. Rusk, 381 U.S. 1, 17 (1965) and United States v. Grimaud, 220 U.S. 506, 516 (1911); or to utilize the kind of expertise that a specialized agency can develop and provide, Mistretta, supra at 368.
215. The asset retention law is a good illustration of Stith's warning that "Congress renders meaningless the Principles of the Public Fisc and of Appropriations Control if it creates spending authority without amount or time limitations and fails to subject such authority to periodic legislative review." Stith, supra note 205, at 1382.
216. Panama Refining, 293 U.S. at 421 ("Congress is manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested."); Field v. Clark, 143 U.S. 649, 692 ("That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."); Byrd v Raines, supra note ---, at 965 F. Supp. At 36, reversed on other grounds, 117 S. Ct. 2312 (1997)("Before the question of a delegation's excessiveness ever arises...a court must be convinced that Congress did not attempt to alienate one of its basic functions.")
217. Michael Glennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions, 60 Minn. L. Rev. 1, 32 (1975)
218. Edward Corwin, The Constitution 134 (Harold Chase and Craig Ducat, eds. 1920, 1978). See also THE FEDERALIST NO. 58, at 394 (J. Madison) (J. Cooke ed. 1961), in which James Madison characterized the appropriations power as "the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people_"); Alan Feld, Shutting Down the Government, 69 Boston Univ. L. Rev. 971, 989 (1989)(describing the power of the purse as "the most viable limitation that legislation and the Constitution places on executive discretion"). Cf. INS v. Chadha, supra note ---, at 957 (Article I's enduring checks "protect the people from the improvident exercise of power").
219. 1 The Records Of The Federal Convention Of 1787, at 139-40 (M. Farrand ed. 1937). The Iran-Contra scandal was a recent and egregious illustration of this danger. There the executive branch usurped the appropriations power by having Oliver North obtain funds (through secret arms sales to Iran) which were then channeled directly to the Nicaraguan Contras. See Congressional Report On Iran Contra, H. Rept. No. 100-433, S. Rept. No. 100-216, Iran-Contra Affair, 1987. As the report noted at 411, "the Constitution contemplates that the Government will conduct its affairs only with funds appropriated by Congress." "[U]under the view of North and Poindexter, a President whose appropriation requests were rejected by Congress could raise money from private sources...[even for] domestic programs. That is the path to dictatorship." Id. at 390. Of course, the forfeiture case is distinguishable in that Congress has itself authorized the executive to bypass the appropriations process. How important is this distinction? To answer that question, we would do well to ask another: if Congress had been told about Oliver North in advance, and had passed a law institutionalizing a secret, self-financing "off-the-shelf" White House operation whose scope and activities would be determined by the entrepreneurial skills of its agents, would the constitutional order have been any less threatened?
220. See House Appropriations Subcommittee on the Departments of Commerce, Justice and State (March 28, 1995) (testimony of Joseph Brann, Director of the Community Oriented Policing Services Program ("block-granting law enforcement money led to waste, fraud, and abuse, and not a commensurate reduction in crime").
221. In a nationwide survey of task force commanders, 97% of task force commanders reported local law enforcement agencies were components of their task forces, but just over Jan. 4 included federal law enforcement agencies. James Coldren, Jr., et al, Multijurisdictional Drug Task Force Operations: Results of a Nationwide Survey of Task Force Commanders, 9 (Aug 1993).
222. 42 U.S.C. Sec. 3754(a).
223. 42 U.S.C. Sec. 3754(e).
224. See supra note 1.
225. JRSA, Five Year Review, supra note 1, at 10. This amount includes only those seizures by task forces receiving federal Byrne grants. It does not include assets seized by DEA or other task forces, or seizures under state forfeiture laws.
226. See, e.g., Winston-Salem/Forsyth County Board of Education, 902 F.2d 267 (4 Cir., 1990), in which local police seized over $10,000, temporaily turned it over to the D.E.A. for federal adoption, and then received most of it back for their own use. Although the state constitution required the funds to be used for public school maintenance, and prohibited the transfer to the D.E.A., the court found that the federal government could adopt a seizure even when the person seizing the property was prohibited from seizing or transferring it under state law. In other words, the federal route allowed state police to directly profit from their own lawlessness.
227. Three scholars who attempted to study the Byrne program found that its administrative complexity "makes it difficult, and perhaps impossible, to assess the program's impact on violent crime, drug trafficking or other specific crime prevention goals on a national scale." Should Washington Fight Crime?, editorial in Investor's Business Daily, Dec. 13/95, at A2 (quoting report by John J. DiIulio, Steven K. Smith, and Aaron J. Saiger.)'
228. The survey obtained information from 528 task force commanders across the country, James Coldren, Jr., et al, Multijurisdictional Drug Task Force Operations: Results of a Nationwide Survey of Task Force Commanders i (hereinafter Task Force Commander Survey) (Aug 1993).
229. Id. at 16 (cited in note 33). The report also states, "The impact of MDTFs on the availability of drugs, drug trafficking, drug abuse or other indicators has been difficult to determine, but is generally presumed to be positive by those involved in task force operations." Id. at 2.
230. Id. at 17.
231. Id. at 18-19.
232. The total kilograms of cannabis (marijuana and hashish) removed from circulation exceeded the kilograms of cocaine removed by a ratio of 26 to 1. Five Year Review at 8 (cited in note 1.)
233. Task Force Commander Survey, at 10.
234. This investigation has been closely reported by Bill Bartleman, David Fraser and Robin Divine in The Paducah Sun since January, 1996.
WANT was established in 1988 with Byrne grant funding. Although 20 law enforcement agencies were nominally members, it was staffed and run by members of the Paducah Police Department, and given a separate office in the police building's basement. The event triggering media attention was the removal of WANT from these separate headquarters to an office within the Paducah Police Department, in response to criticisms that WANT had been hindering investigations by other law enforcement agencies. See Associated Press, "State Finds Room for Improvement in Drug Team" The [Louisville, Ky] Courier Journal, Sept. 5, 1993; Robin Divine, "Paducah Overhauls Drug Investigation Unit," The Paducah Sun, Feb. 14, 1996, A1; David Fraser, "Police asked to investigate loss of evidence," Paducah Sun 6/22/96 pp 1A, 12A.
235. Authorities believe that the money is either evidence or property seized from drug dealers from hundreds of separate drug-related incidents.
236. The Paducah Sun editorialized, "...The discovery of the money and the management breakdown it suggests are disturbing...The developments provide further confirmation that WANT operated with far too much independence and far too little accountability ...[T]he strictest accounting and supervisory backup are demanded; instead they were conspicuously lacking. The result, as we see, is a scramble by top city officials to explain how $60,000 can suddenly show up in a municipal space." The Paducah Sun, Feb. 27, 1996
237. See, for example, Directive 87-1, Memorandum from Assoc. Atty. Gen. Stephen Trott to all U.S. Attorneys , Seized Cash (Mar. 13, 1987), in DOJ Asset Forfeiture Manual at B-477 (cited in note 62) ("The security, budgetary, and accounting problems caused by retention of large amounts of cash is causing great concern within the Department and the Congress."); Senate Committee on Governmental Affairs at 7 (Dec. 14, 1995) (statement of Charles Bowsher, Controller General of the United States) ("audits found that Customs did not have adequate accountability over tons of illegal drugs and millions of dollars of cash and property seized or used in its enforcement efforts...").
238. See generally Coldren, et al, Multijurisdictional Drug Task Force Operations (cited in note 33). 78 percent of task force commanders rate seizing assets as one high priority. "The most significant change [in task forces occuring since their inception] is in the number of task forces that now place a high priority on asset seizures and promoting awareness within the community compared to when the task forces began." The most common change reported in the operation of task forces was seizing assets; 99% of those who changed their emphases said they had increased emphasis on asset seizure. James Coldren, Jr., Edmund McGarell, Michael Sabath, Kip Schlegel, Lisa Stolzenberg, "Multijurisdictional Drug Task Force Operations: Results of a Nationwide Survey of Task Force Commanders", Aug 1993. Justice Research and Statistics Assn., at 7 and Exhibit 4.
239. For example, WANT's 1995 application for federal grant money declared an objective of a 20% rise in asset seizures. David Fraser, want applications place burden on Gorden, officer. Paducah Sun 1A, 18A (Mar. 22, 1996).
240. David Fraser, "Some cash seizures wrong," Paducah Sun, 1A, 12A (Mar. 14, 1996).
241. David Fraser and Bruce Gardner, WANT records emphasize deals of smaller scale, The Paducah Sun, 1A, 12A (Mar. 16, 1996).
242. David Fraser, More WANT money found, Puducah Sun, 1A, 13A, Mar. 13, 1996.
243. Editorial, Police Woes: Lost evidence reflection on WANT, Paducah Sun, at 4A (Jun. 21, 1996).
244. A 1993 study conducted by the state's criminal justice agency, the Justice Cabinet, cited WANT for failing to establish adequate procedures for handling cash and storing evidence (as well as for as misuse of equipment and resources, inadequate leadership, and lack of accountability.) WANT Grant Program Monitoring - Final Report (Sept. 2, 1993).
245. Ky. Rev. Stat. Ann. Sec. 218A.435 (1995).
246. Bill Bartleman, Hoover: Plan about WANT not followed, Paducah Sun 1A, 8A (Mar. 5, 1996). Byrne grant money may be spent for carefully delineated items. It may not be used to pay for budgeted items or cost overruns. See War on Drugs, Federal Assistance to State and Local Drug Enforcement at 20-21 (cited in note 33).
247. Bartleman, Hoover, Paducah Sun at 1A (cited in note 250).
249. Paducah Sun, Jul. 3, 1996, at 2A
250. See, for example, the Mollen Commission Report at 15 (cited in note 163) ("Most serious police corruption today arises from the drug trade. . . [The] wide spectrum of drug-related corruption [ranges] from opportunistic thefts from street dealers, to carefully planned group assaults on drug locations, and long term partnerships with narcotics traffickers.")
251. A former federal prosecutor says that in drug arrests "you almost always find cash. The problem has always been: How do you watch this process? It's a textbook scenario for corruption." See Gerard ONeill, Mitchell Zuckoff, Dick Lehr, "Corruption Probe Shakes Up Boston Police Detective Unit: The Case of the Disappearing Money," Boston Globe, 2/10/96, at p. 1 and Metro/Region section p. 12 The comment pertained to a Boston police scandal, but similar corruption in drug law enforcement has been uncovered in numerous other cities. In New York, the Mollen Commission revealed widespread corruption in the 30th Precinct with more than 30 officers stealing drug money, and some selling the drugs they seized. It also found pervasive police perjury designed to cover up illegal arrests and searches in drug cases. Mollen Commission Report at 22-35. In Philadelphia, five officers in the 39th precinct were indicted and dozens of convictions overturned due to rampant criminal activity that included beating suspects, planting drugs, stealing drugs and money, selling drugs, falsifying official arrest reports to sanitize illegal arrests, and providing perjured testimony. According to The Philadephia Inquirer, the officers worked "with virtual impunity,...driven by the opportunity to steal money and drugs from street dealers and earn overtime pay for court appearances... Because those officers admitted framing countless drug suspects, 42 people arrested since 1988 have had their cases dismissed. Hundreds of other convictions are being reviewed." Mark Bowden and Mark Fazlollah, "Police Corruption inquiry Widens: Up to 9 Officers in Elite Unit Implicated", Phila. Inquirer, 8/13/95, p. A01. See also David Rudovsky, "Why It Was Hands Off On the Police", Philadelphia Inquirer, Aug. 8, 1995, p. A07 (regarding the 39th District, "it now appears that well over a thousand persons were either arrested without cause, subjected to illegal searches and seizures, had money stolen and/or were physically abused by the police"); Joseph D. McNamara, "Law Enforcement: Has the Drug War Created An Officer Liars' Club?", LA Times, 2/11/96 ("The message that politicians seem to be sending to the nation's police chiefs is that we understand police perjury is a part of the drug war.").
252. Since failure to report their colleagues would make these officers complicit anyway, it is often easier to join in the illegalities. An unwilling officer may even be coerced into joining the others by threats that he will be implicated whether or not he engages in corruption. Mollen Commission Report, at 20 (cited in note 164) ("[C]orrupt officers were typically protected by the silence of their fellow officers, and often the willful blindness of supervisors.")
253. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989).
254. James Daniel Good, 510 U.S. at 502, citing Harmelin v. Michigan, 501 U.S. 957, 978 n. 9. In Good, the Supreme Court required notice and a hearing before seizure of allegedly forfeitable real estate under 21 USC 881(a)(7)). No such preseizure hearing is required in the case of other kinds of property.
255. See for example, James Daniel Good, 510 U.S. at 61 ("Individual freedom finds tangible expression in property rights. At stake in this and many other forfeiture cases are the security and privacy of the home and those who take shelter within it."). (Justice Kennedy writing for the Court, joined by Justices Blackman, Stevens, Souter and Ginsburg).
256. See Section III.A.
257. See Jan. 10/1994 Letter from to President Clinton from a coalition led by the ACLU seeking a national commission to review the policies and practices of all federal law enforcement agencies, and criticizing, inter alia, the "inappropriate and disproportionate use of forfeiture proceedings to obtain financing for law enforcement equipment and activities." Other signers included National Rifle Association, National Legal Aid and Defender Association, Second Amendment Foundation, National Association of Criminal Defense Lawyers. For a report on this coalition, see also Michael Hedges, Diverse Coalition Seeks Oversight of Federal Law Officers, Washington Times, Jan. 11, 1994, at A3.
258. Justice Thomas cautions that forfeiture "improperly used . . . could become more like a roulette wheel employed to raise revenue from innocent but hapless owners whose property is unforeseeably misused, or a tool wielded to punish those who associate with criminals, than a component of a system of justice." Bennis v. Michigan, 116 S.Ct. 994, 1003 (1996) (Thomas, J., concurring). Although Justice Thomas consistently votes to uphold the government in forfeiture cases, he has expressed concern with the breadth of modern forfeiture law, suggesting that it may be time to "reevaluate our generally deferential approach to legislative judgments in this area of civil forfeiture." United States v. James Daniel Good, 114 S. Ct. 492, 515-16 (Thomas, J., concurring). Justice Thomas argues that property rights, and particularly rights to real property, are threatened by the government's aggressive use of broad forfeiture statutes like U.S.C. 881 (a)(7), which he believes significantly differs in degree and in kind from its historical antecedents. He questions whether the fiction of guilty property can justify the "immense scope" of this statute. Id. at 81-82.
259. The former Associate Director, David Smith, writes that "a less obvious reason for the large number of conveyances seized by law enforcement agencies is the fact that forfeited conveyances are often placed into government service. Forfeiture of conveyances is a cheap way to provide the cars, vessels and planes that law enforcement agencies need. However, there is evidence that law enforcement priorities are being distorted by the system. There is also the danger that agents may pursue forfeitures overzealously in these circumstances." Smith, Forfeiture, supra at note ---, at Sec. 3.03, p 3-12 (Release 16, in June 1997 ed.)(citing as one example United States v. One 1976 Buick Skylark, 453 F. Supp. 639, 643 (D. Colo. 1978)). As Smith also notes, drug sezirues have a more significant impact on a drug trafficker's cost of doing business than asset forfeitures "because large quantities of drugs have much greater cost to the owner than anything likely to be seized for forfeiture, although their value to the govt is zero. Accordingly, it would be counterproductive for DEA and other fed agencies to devote more resources to asset forfeitures at the expense of drug seizures." Id. at Sec. 1.02, at 1-25. See also United States v. That Certain Real Property Located at 632-636 Ninth Avenue, Calera, Alabama, 798 F. Supp. 1540 (N.C. Ala., 1992) ("More and more courts are voicing frustration at what appears to be overreaching by the United States in the drug war, particularly in forfeiture cases where law enforcement agencies have a 'built-in' conflict of interest because they share in the product of the seizure.")
260. 509 U.S. 602 (1993).
261. Controlled substances, raw materials and instrumentalities, and containers, conveyances tied to a drug violation may be forfeited pursuant to 21 U.S.C. sec. 881(a), except that real estate may be forfeited only if it facilitated the commission of a drug crime punishable by imprisonment for more than one year. 21 U.S.C. sec. 881(a)(7).
262. The Court refused to define forfeiture as purely remedial and non-punitive because there is no necessary correlation between the seized property and costs borne by the government or by society. Austin at 2812, citing United States v. Ward, 448 U.S. 242, 253-254 (1980). See also United States v. 38 Whalers Cove, 954 F.2d 29, 37 (1992)(to be solely remedial, a forfeiture cannot be disproportionately large, "placing full responsibility for the 'war on drugs' on the shoulders of every individual claimant"). Even before Austin, many lower court judges had questioned the constitutionality of grossly disproportional forfeitures under the 8th amendment's prohibition on excessive fines and cruel and unusual punishments. See, e.g., Pratt and Peterson, 65 St. John's L. Rev. at 669 (cited in note 27) (arguing that "when an expensive automobile is forfeited on the strength of less than twenty-five grams of marijuana, one must swallow hard to maintain that the 'punishment' is proportionate to the 'crime.'", and citing similar concerns in United States v. Property at 4492 S. Livonia Road, 889 F.2d 1258, 1270 (2d Cir.1989).
263. The Supreme Court will revisit the issue in 1998, having agreed to hear an appeal from a Ninth Circuit decision holding that forfeiture of $357,114 in cash at Los Angeles International Airport from a man trying to smuggle it to Syria, in violation of a law prohibiting the undeclared export of more that $10,000, was an excessive fine under the Eighth Amendment. United States v. Bajakajian, 117 S.Ct. 1841 (1997). Although Justice Scalia proposed an "instrumentality test" that would measure excessiveness solely by examining the property's nexus to the offense without reference to its value, Austin at 2815 (Scalia, J., concurring), the majority explicitly left the question open. Id. at 2812. Several lower courts have insisted that a comparison between the gravity of the offense and the value of the property (a "proportionality test") must figure in the Eighth Amendment determination as well. One test, enunciated by a Federal District Court, would apply a 3 factor test to determine whether the excessive fines clause is violated: "(i) the inherent gravity of the offense compared with the harshness of the penalty; (ii) whether the property was an integral part of the commission of the crime; and (iii) whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use." U.S. v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725, 732 (1994). The court concludes,
[T]he multi-factor test we establish "will have the added benefit of checking the government's potential for abusive use of the civil forfeiture statutes. The constitutional protection of the Excessive Fines Clause is especially important in the forfeiture context 'where the Government has a direct pecuniary interest in the outcome of the proceeding' [citations omitted]. Failure to strictly enforce the Excessive Fines Clause inevitably gives the government an incentive to investigate criminal activity in situations involving valuable property, regardless of its seriousness, but to ignore more serious criminal activity that does not provide financial gain for the government.
For alternative Circuit Court tests, see United States v. 6380 Little Canyon Road, 59 F.3rd 974, 982-85 (9 Cir., 1995); United States v. Chandler, 36 F.3d 358 (4 Cir., 1994); United States v. Milbrand, 58 F.3d 841 (2d Cir., 1995); United States v. Royal Route #1, Box 224, 14 F. 3d 864, 874 (3d Cir., 1994); United States v. 9638 Chicago Heights, 27 F.3d 327 (8th Cir., 1994).
264. Like all attorneys, prosecutors must not labor under actual or potential conflicts of interest. This restriction may be found not only in Constitutional due process requirements, but in professional responsibility requirements. See ABA Model Code of Professional Responsibility DR 5-105; EC 5-1 (lawyer's judgment should be free of "compromising influences and loyalties), EC 5-2 (lawyer should refuse client if reasonable probability that personal interests will affect adversely the services to be rendered); ABA Model Rules of Professional Conduct, Rule 1.7 Comment 6 ("The lawyers own interests should not be permitted to have adverse effect on representation of a client"); Rule 1.11, Comment 2 (government lawyers subject to Rule 1.7 prohibition of conflicts). These or similar restrictions have been codified by the states to govern their attorneys, and additional state laws may mandate courts to disqualify prosecutors laboring under a conflict of interest, see, e.g., People v. Eubanks, 59 Cal. Rptr. 2d 200 (1996)(interpreting Cal. Penal Code sec. 1424 to require disqualification where conflict renders it unlikely defendant will receive fair treatment), or to dismiss indictments obtained by biased prosecutors, see e.g. People v. Superior Court (Greer), 19 Cal. 3d 255, 263 n. 5 (1977).
Federal prosecutors are governed by both state and federal rules of professional responsibility. The Model Code has been specifically applied to U.S. attorneys by Justice Department regulation. 28 CFR s. 45.735-1(b)(1986). Additionally, U. S. Attorneys are lawyers and as such are generally subject to the ethical rules of the state in which they practice, as many local federal court rules make clear. See, e.g., U.S. District Court for Massachusetts Local Rule 83.6(4); United States v. Klubock, 832 F. 2d 649, 655 (1987). Moreover, conflicts may be criminally prosecuted under 18 U.S.C. Sec. 208(a)(prohibiting federal prosecutors from representing the government in any judicial proceeding in which they, their families, or their business associates have a financial interest, and punishing violations by a fine and up to five years imprisonment).
In Young v. U.S. ex rel Vuitton, 481 U.S. 787 (1987), in which the Supreme Court reversed criminal contempt convictions because counsel for the beneficiary of the contempt order had been appointed to prosecute the contempt. The court found that regardless of whether there was actual prosecutorial impropriety, the conflict created "the potential for private interest to influence the discharge of public duty", id. at 805, and was so fundamental an error as to obviate any inquiry into prejudice. Id. at 809-10. The court distinguished the potential conflict in Marshall v. Jerrico as too remote and therefore speculative. Id. at 807. For other cases prohibiting prosecutorial conflicts, see Ganger v. Peyton, 379 F.2d 709 (4 Cir., 1967); State v. Imperiale, 773 F. Supp. 747, 751-756 (D.N.J., 1991); People v. Zimmer, 51 N.Y.2d 390 (1980). For proposals to further regulate prosecutorial discretion, see A.B.A., Standards for Criminal Justice, The Prosecution Function, secs. 3-3.9(d), 3-1.3(a) and (f)(App. Draft 1971); ALI Model Code of Pre-Arraignment Procedure for Criminal Justice secs. 350.3(2)-(3) (1975); Kenneth Bresler, "I Never Lost a Trial": When Prosecutors Keep Score of Criminal Convictions", 9 Geo.J.Leg.Ethics 537,542 (1996) (prosecutors "must note create individual incentives to seek convictions"); Abrahms, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L. Rev. 1 (1971).
265. Supreme Court dicta established outrageous government misconduct as a due process defense in United States v. Russell, 411 U.S. 423, 432 (1973) and Hampton v. United States, 425 U.S. 484, 490 (1976). But the doctrine has been only rarely invoked, and then primarily in entrapment situations where the government's conduct was deemed intolerable. (Unlike the entrapment defense, however, here the focus is purely on the governments conduct, and the defense is available even to a culpable defendant.) See, e.g., United States v. Batres-Santolino, 521 F. Supp. 744 (N.D. Cal. 1981); United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); State v. Lively (Wash. Sup. Ct. No. 60389-8, 8/29/96), 59 CrL 1521. In a particularly relevant opinion, the Ninth Circuit found that a crime choreographed by an informant crossed this line because the informant was paid based on the conviction rate, the amount of drugs involved and the value of assets seized; but it withdrew the opinion after further argument successfully challenged the existence of these financial incentives. United States v. Solorio, 37 F. 3d 454 (1994), withdrawn and superceded by 53 F. 3d 341 (9th Cir. 1995). The courts initial reasoning, however, should apply to future cases that do present the kind of rewards assumed in its first opinion:
[Such financial incentives create too great a risk evidence will be fabricated, and] it is extremely likely that innocent people will be prosecuted and convicted, and that informants will induce defendants to sell greater quantities of drugs than they are predisposed to sell....
The danger is further exacerbated where the party with the financial incentive is the person orchestrating the crime...Complete control over the "crime" makes "sting operations" an efficient law enforcement technique. However, this same feature creates enormous potential for abuse. When, as here, "sting operations" are combined with contingency fees designed to maximize the conviction rate and the amount of drugs, it is likely that this potential will become actual. At a minimum, the Due Process Clause protects against the conviction of individuals on the basis of evidence that has such a high risk of being false.
In some cases, the reverse stings favored by asset-hungry police agencies may violate the outrageous conduct doctrine. A federal district court so found in United States v. Santana, 808 F. Supp. 77 (D. Mass., 1992), where the government delivered 13.3 grams of 92% pure heroin to a suspect to gain his confidence, lost track of the drugs, and thereby sent 2,500 street doses into commerce. The Court of Appeals reversed the District Court's dismissal, however, persuaded that the tactic was necessary and that the defendant had suffered no prejudice. United States v. Santana, 6 F.3d 1, 8 (lst Cir. 1993); see also Hampton, supra (not outrageous conduct where defendant convicted of selling heroin supplied by government agents). Nevertheless, the opinion did reaffirm that sufficiently outrageous governmental conduct does mandate dismissal on due process grounds, and may warrant dismissal under the court's supervisory powers for the sole purpose of deterring government misconduct even in the absence of constitutional harm to a defendant. Id. at 9, 11-12, citing U.S. v. Hasting, 461 U.S. 499, 505 (1983). In the First Circuit and most others, the "outrageous misconduct doctrine, no matter how cramped its confines, is not entirely mummified," id. at 12, although it has been rejected by two circuits. See U.S. v. Tucker, 28 F.3d 1420 (6th Cir. 1994); U.S. v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995).
While the outrageous conduct doctrine has been asserted as a defense to government entrapment efforts, the defense is much broader, at least in theory. The due process prohibition applies to prevent conviction brought about by any "methods that offend 'a sense of justice." Rochin v. California, 342 U.S. 165, 173 (1952). There, pumping the stomach of a defendant to obtain swallowed capsules was found to violate the due process clause. Rochin and subsequent cases have been identified as a separate line of authority prohibiting physical abuse of the defendant as "outrageous conduct" in violation of due process. See U.S. v. Kelly, 707 F2d 1460, 1476 n. 13 (D.C. Cir., 1983); United States v. Bogart, 783 F. 2d 1428, 1438 (9 Cir., 1986).
266. This is not a prediction, but speculation on the Supreme Courts ultimate destination in developing new federalism doctrines. The Court has recently effected a sea change in the scope of federal power. See United States v. Lopez, 115 S. Ct. 1624 (1995)(striking down the Gun Free School Zones Act as beyond Congress Commerce Clause power); Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996)(holding that the previously established Congressional power to abrogate state immunity is limited to implementation of the 14th amendment and may not be invoked to implement its commerce power under Art I, sec. 8); New York v. United States, 505 U.S. 144 (1992)(overturning a law that required the states to either enact radioactive waste legislation of take title to the waste); and Printz v. United States, -- U.S. --- (June 27, 1997)(striking down a portion of the Brady Bill on grounds that it conscripted state officials to execute federal law). However, nothing in those cases would bar the kind of federal inducements that exist in the adoption law: unlike the Brady Bill, adoption does not require the states to provide services or spend money, but rather transfers money to those local agencies who wish to receive it. But such a scheme does profoundly alter the balance of federal and state powers, and it remains to be seen whether the Supreme Court might ultimately prove responsive to an argument that the federal government cannot constitutionally alienate local agencies from their state government in this way. For one opinion raising federalism concerns about federal adoptions, see Scarabin v. Drug Enforcement Administration, 966 F. 2d 989 (5 Cir. 1992).
267. On June 20, 1997, the House Judiciary Committee passed Congressman Hydes proposed Civil Asset Forfeiture Reform Act, H.R. 1965, by a vote of 26 - 1.
268. See the proposed Civil Asset Forfeiture Reform Act, H.R. 1965 in the 105th Congress, and the Report of the House Judiciary Committee, Rept. 105-358 Part I (October 30, 1997). As passed by the House Judiciary Committee, this act would institute numerous procedural changes generally providing more protection to property owners, including a requirement that the government shoulder a burden of proving its case by a preponderance of the evidence, the provision of a court-appointed attorney for indigent claimants in some cases, the elimination of the bond required to challenge a seizure, compensation to the owner if the government negligently damages the seized property, an extension of the deadline for challenging a forfeiture to 30 days, requirement of notice to all identified interested parties within sixty days, and clarification of the federal "innocent owner" defense to include unknowing or unconsenting owners.
269. The ABA in 1996 urged Congress to rewrite forfeiture laws to make them more just and equitable, and "restore public confidence that the civil forfeiture laws can and will be fairly deployed to fight crime, and not merely to further fiscal interests." Fairness in Civil Forfeiture, ABA Journal, Nov. 1996, p. 102, quoting Terrance G. Reed, chair of the RICO, Forfeiture and Civil Remedies Committee of the ABA Criminal Justice Section, testifying before the House Judiciary Committee in July, 1996 concerning the ABA's Statement of Principles on the revision of the Federal Asset Forfeiture Laws. Representatives of all of the other organizations named above testified or provided submissions to the House Judiciary Committee supporting some or all of the proposed reforms on June 11, 1997. See Report of the House Judiciary Committee, HR Rep. No. 105-358 at 36 (cited in note 272). However, the Justice Department's support of the Hyde Bill may hinge on other provisions which expand the reach of the forfeiture law, including secs. 21 (forfeiture of proceeds traceable to facilitating property in drug crimes), 22 (forfeiture of proceeds of certain foreign crimes), 32 (forfeiture for additional money laundering offenses), 37 (forfeiture of instrumentalities of terrorism and telemarketing fraud), 38 (frofeiture of criminal proceeds transported in interstate commerce, and 40 (forfeiture of counterfeit paraphernalia). This in turn has driven away supporters of earlier versions of the Hyde Bill, including the ACLU. See Press Release of the ACLU, July 22, 1997.
270. Congressman John Conyers did include asset distribution reform in the unsuccessful bill he introduced in 1993, H.R. 3347 (The Asset Forfeiture Justice Act). The Asset Forfeiture Justice Act would have redirected 50% of the proceeds in the asset forfeiture program to community based crime control efforts, drug education and treatment programs, id. sec. 15, and assured forfeitures transferred to state or local agencies were disposed of according to the states law, id. secs. 14, 17. But these proposals were cast aside, and Congressman Hyde did not include it in his reform bill because he believed such a bill would have no chance of getting through Congress.
271. Hyde, Forfeiting our Property Rights 68 (Cato Institute, 1995). The Hyde Bill's failure to address asset distribution more directly prompted the National Association of Criminal Defense Lawyers to submit a written statement to the House Judiciary Committee, urging that it not "ignore the conflicts of interest and policy problems which arise when law enforcement and prosecutorial agencies reap financial bounty from the forfeiture decisions they make. Decisions regarding whose property to seize, and how to deal with citizens whose property has been seized is too often dictated by the profit the agencies stand to realize from the seizures." U.S. House Committee on the Judiciary regarding H.R. 1916 at 28.(July 22, 1996) (written Statement of E.E. Edwards, III, David B. Smith, Richard J. Troberman (Co-Chairs of the National Association of Criminal Defense Lawyers, Asset Forfeiture Abuse Task Force).
272. This 1988 amendment included a provision stating, "(e)(3) The Attorney General shall assure that any property [forfeited assets] transferred to a State or local law enforcement agency . . . (B) is not so transferred to circumvent any requirement of State law that prohibits forfeiture or limits use or disposition of property forfeited to State or local agencies." 21 U.S.C. Sec. 881(e)(3), Pub. L. 100-690, sec. 6077(a)(1988 amendment).
273. See 1989 amendment to 21 U.S.C. Sec. 881 (e)(3)(B); Pub. L. 101-189, sec. 1215(a).
274. The sponsor was Congressman Bill Hughes, the original author of the federal adoption provision who had come to regret its impact. See Hyde, Forfeiting Our Property Rights, at 68 (cited in note 275), quoting Hughes.
275. Police witnesses testified to dire consequences if the Byrne program were not refunded, including "anarchy" in the cities, police inability to enforce of drug laws, and the general deterioration in the quality of American life. See Appendixes to Hearings on the Proposed Elimination of the Byrne Grant Program, ---- (Mar. 2, 1994).
276. Testimony of N. J. Attorney General Deborah Poritz to House Appropriations/Commerce, Justice, State, the Judiciary, and related Agencies in favor of restoring Byrne grant money, 5/3/1994 (stating 400 police officials would lose their jobs if grants were eliminated). An additional factor, distressing to rural and suburban police forces, was fear that unlike Byrne grants, the funding for new police officers would be allocated based on population density. This turned out not to be the case. These new police positions were designed to be distributed "to a wide range of communities, including those in which violence was not a serious problem, leaving insufficient resources for the communities that were in greatest need." Philip Heymann and Jody Heymann, The Fate of Public Debate in the United States, 33 Harv. J. on Legis. 517 (1966)
277. According to Richard Troberman, a member of the National Association of Criminal Defense Lawyers involved in discussions with the Justice Department and Congress over forfeiture reform, negotiations between reformers and the Justice Department foundered over this issue, the one procedural reform that would have directly affected the forfeiture income stream. Interview with Richard Troberman by authors, conducted April 1, 1997.
278. Hyde, Forfeiting Our Property Rights at 66-67 (cited in note 275) (advising that forfeiture proceeds be deposited in the general fund, and explaining why he has not proposed such a measure).
279. The unsuccessful Conyers bill, HR. 3347, 103d Cong., 1st sess., included this option, and state officials have urged this reform. See, e.g., Attorney General [of Mississipi] Mike Moore and Jim Hood, "The Challenge to States Posed by Federal Adoptive Drug Forfeitures," National Association of Attorneys General, June/July 1992, pp. 1, 3. We have seen that two previous attempts failed. See supra note ---. While failing to include it in his reform bill, Congressman Hyde suggests that procedural changes making federal forfeiture more difficult would encourage local and state police to use their own forfeiture laws. Hyde, Forfeiting Our Property Rights at 66-68 (cited in note 275).
280. All states except Iowa and Vermont have forfeiture laws. Some allow forfeiture of assets only after a criminal conviction. See, e.g., Missouri's forfeiture statute, Mo.Ann.Stat. ss513.600-645 (Vernon supp. 1994). Some allow forfeiture of very limited kinds of assets or under very limited circumstances. See, e.g., Cal. Health & Safety Sec. 11469. (mandating specific guidelines for police and prosecutors in order to ensure that law enforcement is the principal objective of forfeiture). Some require forfeited assets to be deposited in the general treasury. See, e.g., Tenn. Code Ann. Sec. 53-11-451, 53-11-452 (though vehicles go to the police); N.C. Gen. Stat. Sec. 90-112, N.C. Constitution Art. 9 Sec. 7; N.M. Stat. Ann. Sec. 30-31-35; 22-8-32. Others specify a particular division among branches of law enforcement and some non-law enforcement entities. See e.g., N.Y. Civil Prac. L. & R. Sec. 1349 (40% substance abuse service fund); Minn. Stat. Sec. 609.5315 (70% to police, 20% to prosecutor, 10% to general fund); Mass. Gen. Law Ch. 94C Sec. 47(d)(50% to prosecutor and 50% to police; prior to 1984 amendment excess after expenses was deposited in the general treasury).
281. National Conference of Commissioners on Uniform State Laws, Uniform Controlled Substances Act (1994) with Prefatory Note and Comments, at 4-5. Section 522(h) of the Uniform Substances Act states in pertinent part, "Money remaining after the satisfaction of the requirements of subsections (e) through (g) must be deposited in the [general fund] of the state." (brackets in original). The model law brackets the words "general fund" in recognition of the fact that some state constitutional provisions require that collections be shared with specified funds, such as an education fund. Subsections (e) through (g) give general directions for sale and/or disposal of property, and allow the transfer of a forfeiture action to a federal agency or agency of another state when that agency has contributed to the forfeiture.
282. National Conference of Commissioners on Uniform State Laws, Proceedings in Committee of the Whole, Uniform Controlled Substances Act, Article V, Civil Forfeiture, at 114 (Aug. 2-9, 1991) (Commissioner Harold E. Read, Jr.).
283. Id. at 114 (Commissioner Bryce A. Baggett). At a later meeting, Baggett told the other participants that "this is the most important decision you'll make. The money is corrupting. . .Prosecutorial decisions are made on the basis of how much we can grab.", National Conference, Proceedings in Committee of the Whole, 1993 Proceedings, at 131-32. Other commissioners were equally concerned with the asset allocation issue. See statement of Commissioner John H. Langbein (Connecticut), 1991 Proceedings at 117 ("It is deeply important that we recognize the venal conflict of interest that exists when law enforcement officers can basically line their pockets, not so much personally, but in terms of their appropriations, their perks, those Cadillacs . . . When they are able to control their own appropriations by making individual arrests and so forth of citizens, you are in the worst kind of conflict of interest."); statement of Commissioner Michael Cramer (Maryland), 1993 Proceedings, at 115 ("I think this is carrying privatization of public works a little too far. It creates an overzealous attitude which is incompatible with everything in the history of our law, or at least the way I perceive it to be.)."
284. 1993 Proceedings at 130-131 (Commissioner Bryce A. Baggett) (cited in note 287). The prosecutors joined the President's Commission on Model State Drug Laws and published their recommendations for reform as the Commission Forfeiture Reform Act (C.F.R.A.). The C.F.R.A. "continues to allocate forfeiture revenues to law enforcement activities, with the exception of an optional diversion of 10 percent of revenues to drug treatment programs...[It] relies upon prosecutorial codes of ethics and conduct to prevent abusive forfeiture practices." Raymond Pepe, "Alternative Proposals for the Reform of State Legislation Dealing with Forfeitures for Drug Offenses," 21 Wm. Mitchell L.Rev. 197, 213-14 (1995).
285. 1991 Proceedings at 118 (Commissioner Donald E. Mielke) (cited in note 287).
286. Many judges have noted how constitutional guarantees may be no match for the frenetic imperatives of the drug war. See, e.g., Juan R. Torruella, "The 'War on Drugs': One Judge's Attempt at a Rational Discussion," 14 Yale J. on Reg. 195, 256-57 (1997)(concluding that "citizens have been willing to give up their collective civil rights in the name of, and in exchange for, an illusory achievement of 'law and order'...when it comes to those accused of drug violations"); Judge Patricia M. Wald (Chief Justice of the D.C. Court of Appeals), A Report From the Front in the War on Drugs, 7 Ga. State U. L. Rev. 1 (1990)("without vigilance, a fair, individualized system of criminal and civil justice could be an early [drug] war casualty").
287. See text accompanying notes 172-174 (detailing the growing prison population of non-violent drug offenders). Speaker Newt Gingrich has gone so far as to craft the Drug Importer Death Penalty Act of 1997, HR 41 in the 105th Congress, which would execute recidivist importers of any illicit drug where the quantities totalled 100 times the usual dosage amounts on at least two occasions.
288. For example, William Bennett has proposed putting the military in charge of the drug interception activities of the DEA, the FBI, and other agencies, and Rep. Bill McCollum, chair of the Crime Subcommittee of the House Judiciary Committee, recently demanded "a massive deployment of Navy, Air Force, Coast Guard, and Customs ships, planes, radar, night vision surveillance equipment and the personnel to man them for an around-the-clock operation designed to totally disrupt the drug trafficking through the eastern Carribean." See Robert Dreyfuss, Hawks and Doves, Rolling Stone, 8/7/97, at 44-45, and Bill McCollum, A New Crisis in Drug Use, 142 Cong. Rec. H11361-03. In the 1996 campaign, candidate Robert Dole advocated using "our military power, particularly our technological capabilities, to fight this [anti-drug] battle, to involve our intelligence agencies, including the CIA, in this effort." The Progressive, Still on Drugs (editorial), Oct., 1996, vol. 60 no. 10, at 9) See also A. Zitner, Dole Vows Guard Role in Drug War, Boston Globe, Sep. 2, 1996; J. Shenk, The Phony Drug War, The Nation, Sep. 23, 1996, at 11. On the Democratic side, the continuing militarization of drug law enforcement is symbolized by President Clinton's appointment of a retired Gulf War general, Barry McCaffrey as "drug czar," heading the Office of National Drug Control Policy. McCaffrey in turn has increased the staff positions several-fold and filled many of them with active-duty military officers. Dreyfuss, supra, at 42.
The Posse Comitatus Act, 18 U.S.C. Sec. 1385 (1988) prohibits direct military participation in purely domestic law enforcement operations, but has been amended to allow the military to gather information, give advice, lend equipment and deploy personnel at the request of local law enforcement officials with jurisdiction over drug or immigration offenses. Department of Defense Authorization Act of 1982, Publ L. No. 97-86, 95 Stat. 1114 (1981) (codified at 10 U.S.C. 371-385 (1982). The proposal to further militarize the drug war threatens additional and unjustifiable abuses to life and liberty, as was recently illustrated by the shooting death of teenager Esequiel Hernandez Jr. by marines on a drug surveillance mission in Redford, Texas. See Sam Verhovek, "In Marine's Killing of Teenager, Town Mourns and Wonders Why," New York Times, June 29, 1997, pp. 1, 18 ("[C]ritics . . . say the death of Mr. Hernandez, who had no criminal record and is not described by anyone as any kind of suspect in the drug trade, is a chilling example of the misunderstandings and the tragedies that they say will inevitably occur with the militarization of the border or any other patch of American soil.")
289. Murray Weiss, Rudy to seal deal for NYPD's Dominican drug outpost, NY Post 2 Nov. 18, 1996, (reporting that "drug-fighting NYPD cops . . [will] make the streets safer for Dominicans who live in the Dominican Republic and for those nationals who live in New York City...").
290. See Sherry Dorsey, 17 Arrested on Drug Charges in New Hampshire, Boston Globe, June 22, 1995 at 23 (reporting Operation Streetsweeper in New Hampshire, a June, 1995 multijurisdictional task force operation deploying 150 officers to arrest 17 low level drug sellers and addicts and seize one gun). Alexander Cockburn notes than when the war on drugs began in the late 1960's there were only two federal agencies enforcing the drug laws. He lists 54 today (including the DEA, NSA, IRS, DIA, ATF, State Department, Customs Coast Guard, Army, Navy, Air Force, and Marines) with a federal budget of $13 billion, with more tha $800 million going to the DEA. The Nation, Nov. 15 1993 at 3. The anti-drug opertions executed by these agencies include, inter alia, wiretaps and airspace surveillance by 3,700 National Guard employees, see Shenk, supra note ---; coastline interdiction by such agencies as the DEAs National Narcotics Border Interdiction System (NNBIS), the Coast Guard, and the Navy, including the firing on drug smuggling ships in international waters; NASA satellite surveillance; Treasury Dept. tracing of money laundering operations; CIA intelligence gathering about foreign drug sources; and State Department pressure on foreign governments to eradicate crops. Wisotsky, 38 Hastings L.J. at 892-93 (cited in note 161).