Fumbled Forfeiture
Current forfeiture law promotes the violation of constitutional rights for economic gain, especially for drug cases. Additionally, because of the State’s potential economic gain attached to drug cases, forfeiture law allows government and law enforcement to remain complacent with the lack of progress on the War on Drugs.
Kevin briefly described the backwardness of forfeiture earlier this year, here. Basically, forfeiture allows law enforcement to take property that is used or intended to be used in connection with illegal activity for its own use. Kevin also pointed out the glaring conflict of interest when police officers have financial incentive attached to their investigations. I wanted to probe these policy flaws a bit further.
First, forfeiture threatens the protections against illegal searches and seizures guaranteed by the Fourth Amendment by allowing police officers to retain the financial benefits of forfeiture despite the outcome of the related criminal prosecution. In Mississippi, a claimant does have the opportunity to explain a legitimate source for the funds, but courts are not always convinced. That’s right, folks, even if criminal charges are dropped or the defendant is innocent, police (under federal jurisdiction and a few state jurisdictions) can still keep the goods, i.e. money or real estate. Bennis v. Michigan, 516US
This little loophole exists primarily because forfeiture moves fluidly from higher criminal standards to lower civil standards. First, in order to seize property, police must have “probable cause” that the property is connected to the illegal activity. Subsequent to law enforcement’s seizure, the criminal defendant may attempt to regain his or her property through a forfeiture proceeding. Yet, the State must only prove by a “preponderance of the evidence”—a civil standard less demanding than the criminal standard of probable cause—that the property was used or was intended to be used in violation of the law. Blumeson and Nilsen, THE NEXT STAGE OF FORFEITURE REFORM 14 Fed.Sent.R. 76 (Sept. 2001).
Because the forfeiture proceeding is a civil matter, criminal violations such as illegal searches and seizures hold no legal significance. Boudreaux and Prtichard, CIVIL FORFEITURE AND THE WAR ON DRUGS, 33 San Diego L.Rev. 79 (1996); See also One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (holding that double jeopardy claims are not valid in civil forfeiture proceedings as they are criminal issues). Furthermore, that item’s connection to illegal activities may fail to meet the probable cause standard in the criminal world and thus be excluded from trial; however, the police may still retain the item by meeting the lower preponderance standard in the civil proceeding.
So, perhaps an over-zealous or morally flexible police officer may be willing to conduct a warrantless search predicated on mere hunch, knowing that even though the criminal case is ruined by a constitutional violation, he and his department can still keep the couple grand found in a Mason jar labeled “Summer Vacation Savings”. With job security and the financial stability of state budgets both plummeting, it is not beyond belief that agencies and individual officers may put a lower emphasis on protecting constitutional guarantees, and a greater emphasis on having enough money to stay afloat. Christopher Buckley's words ring loud with practicality, "We all have mortgages to pay".
Forfeiture also indirectly threatens public safety, specifically regarding illegal drug investigations. We’ve all seen enough TV and movies to know that drug sales don’t happen overnight. Many steps have to take place before drugs are turned into money; manufacturing, transportation, and distribution are just a few. That being said, a police raid that results in the seizure of drugs and paraphernalia is useless compared to a raid that results in large sums of cash. In the former scenario, the police cannot resell illegal drugs and paraphernalia, but instead must destroy such items. On the other hand, cash forfeitures provide immediate financial relief.
As a result, law enforcement who are covertly investigating and monitoring illegal drug activity are more tangibly rewarded for busting dealers later in the operation, once the drugs have been turned to cash. Blumeson and Nilsen. However, when police wait for the cash to roll in before making a bust, they must accept the fact that the drugs have already been sold and used. Forfeiture therefore pulls attention away from rehabilitating addicts and decreasing the supply of available drugs. Id. Instead, because it is more lucrative for police to bust dealers who have already sold their stash, forfeiture focuses law enforcement’s attention on the proceeds of the drug trade. Commenting on this backward incentive structure, Patrick Murphy, the former Police Commissioner ofNew York
So, in twist of irony, the War on Drugs has become a financial crutch for many police departments. As certain as our society is that drugs are destroying families and ruining lives, that society must also admit that the same drugs provide many positive qualities, such as bankrolling State institutions and supporting law enforcement.
Kevin briefly described the backwardness of forfeiture earlier this year, here. Basically, forfeiture allows law enforcement to take property that is used or intended to be used in connection with illegal activity for its own use. Kevin also pointed out the glaring conflict of interest when police officers have financial incentive attached to their investigations. I wanted to probe these policy flaws a bit further.
First, forfeiture threatens the protections against illegal searches and seizures guaranteed by the Fourth Amendment by allowing police officers to retain the financial benefits of forfeiture despite the outcome of the related criminal prosecution. In Mississippi, a claimant does have the opportunity to explain a legitimate source for the funds, but courts are not always convinced. That’s right, folks, even if criminal charges are dropped or the defendant is innocent, police (under federal jurisdiction and a few state jurisdictions) can still keep the goods, i.e. money or real estate. Bennis v. Michigan, 516
This little loophole exists primarily because forfeiture moves fluidly from higher criminal standards to lower civil standards. First, in order to seize property, police must have “probable cause” that the property is connected to the illegal activity. Subsequent to law enforcement’s seizure, the criminal defendant may attempt to regain his or her property through a forfeiture proceeding. Yet, the State must only prove by a “preponderance of the evidence”—a civil standard less demanding than the criminal standard of probable cause—that the property was used or was intended to be used in violation of the law. Blumeson and Nilsen, THE NEXT STAGE OF FORFEITURE REFORM 14 Fed.Sent.R. 76 (Sept. 2001).
Because the forfeiture proceeding is a civil matter, criminal violations such as illegal searches and seizures hold no legal significance. Boudreaux and Prtichard, CIVIL FORFEITURE AND THE WAR ON DRUGS, 33 San Diego L.Rev. 79 (1996); See also One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (holding that double jeopardy claims are not valid in civil forfeiture proceedings as they are criminal issues). Furthermore, that item’s connection to illegal activities may fail to meet the probable cause standard in the criminal world and thus be excluded from trial; however, the police may still retain the item by meeting the lower preponderance standard in the civil proceeding.
So, perhaps an over-zealous or morally flexible police officer may be willing to conduct a warrantless search predicated on mere hunch, knowing that even though the criminal case is ruined by a constitutional violation, he and his department can still keep the couple grand found in a Mason jar labeled “Summer Vacation Savings”. With job security and the financial stability of state budgets both plummeting, it is not beyond belief that agencies and individual officers may put a lower emphasis on protecting constitutional guarantees, and a greater emphasis on having enough money to stay afloat. Christopher Buckley's words ring loud with practicality, "We all have mortgages to pay".
Forfeiture also indirectly threatens public safety, specifically regarding illegal drug investigations. We’ve all seen enough TV and movies to know that drug sales don’t happen overnight. Many steps have to take place before drugs are turned into money; manufacturing, transportation, and distribution are just a few. That being said, a police raid that results in the seizure of drugs and paraphernalia is useless compared to a raid that results in large sums of cash. In the former scenario, the police cannot resell illegal drugs and paraphernalia, but instead must destroy such items. On the other hand, cash forfeitures provide immediate financial relief.
As a result, law enforcement who are covertly investigating and monitoring illegal drug activity are more tangibly rewarded for busting dealers later in the operation, once the drugs have been turned to cash. Blumeson and Nilsen. However, when police wait for the cash to roll in before making a bust, they must accept the fact that the drugs have already been sold and used. Forfeiture therefore pulls attention away from rehabilitating addicts and decreasing the supply of available drugs. Id. Instead, because it is more lucrative for police to bust dealers who have already sold their stash, forfeiture focuses law enforcement’s attention on the proceeds of the drug trade. Commenting on this backward incentive structure, Patrick Murphy, the former Police Commissioner of
So, in twist of irony, the War on Drugs has become a financial crutch for many police departments. As certain as our society is that drugs are destroying families and ruining lives, that society must also admit that the same drugs provide many positive qualities, such as bankrolling State institutions and supporting law enforcement.
Posted by Caleb Ballew at 15 July 2009, 11:40 AM 
Categories: MS Search and Seizure Law, MS Criminal Procedure, MS Drug Laws
Categories: MS Search and Seizure Law, MS Criminal Procedure, MS Drug Laws
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