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Asset Forfeiture is Dysfunctional Policy

Two sociologists received the l994 Academy of Criminal Justice Sciences Award for their undercover study and critical analysis of asset forfeiture's impact on police procedure. Drug Enforcement 's Double-Edged Sword: An Assessment of Asset Forfeiture Programs, by Mitchell Miller, Tennessee State University, and Lance H. Selva, Middle Tennessee State University, a scholarly examination of drug enforcement's use of asset forfeiture, will appear in a forthcoming issue of Justice Quarterly.

The study is based on twelve months of covert observation from within narcotics enforcement agencies by one of the authors who assumed the role of confidential informant in undercover drug investigations. The researchers assessed the effect of forfeiture on police conduct and case selection. Their findings "suggest asset forfeiture is a dysfunctional policy that has, in implementation, strayed from its original intent.... Forfeiture programs, while serving to generate income, prompt drug enforcement to serve functions that are inherently contradictory and often at odds with the demands of justice."

The undercover researcher observed agencies abandon investigations of suspects they knew were trafficking large amounts of contraband simply because the case was not profitable. Agents routinely targeted low level dealers rather than big traffickers, who are better able to insulate themselves and their assets from reverse sting operations. The report states: "Efficiency is measured by the amount of money seized rather than impact on drug trafficking."

A reverse sting operation, where the officer becomes the seller who encourages the suspect to commit a crime, "was the preferred strategy of every agency and department with which the researcher was associated because it allowed agents to gauge potential profit prior to investing a great deal of time and effort." More importantly, the narcotics units studied preferred seizing cash intended for purchase of drugs supplied by the police, rather than confiscating drugs already on the street. When asked why a search warrant would not be served on a suspect known to have resale quantities of contraband, one officer responded: "Because that would just give us a bunch of dope and the hassle of having to book him (the suspect). We've got all the dope we need in the property room, just stick to rounding up cases with big money and stay away from warrants."

In one case an agency instructed the researcher to observe the suspect's daily transactions reselling a large shipment of cocaine so that officers could postpone making the bust until after the majority of the drug shipment was converted to cash. This case was one of many in which the goal was profit rather than reducing the supply of drugs reaching the street.

The researchers also found that, due to competition for revenues between agencies in adjoining or overlapping jurisdictions, "operations often disintegrated due to a general lack of interagency cooperation, leaving numerous suspects at large."

The report concludes: "The tactics required to generate seizures (of cash) on a regular basis too often conflict with the ideals of protecting and serving the public. A situation has developed that allows narcotics supervisors to justifiably choose between strategies that produce revenue and those that acknowledge the demands of justice. Recent Supreme Court decisions have done little to alter the present approach of forfeiture programs.... These restrictions [arising from Austin v. U. S. and U. S. v. Buena Vista] will not necessarily limit the scope and victimization and intrusion; they may even worsen the present condition. The principle of proportionality, for example, confines law enforcement to less property per seizure, but may invite more frequent application of the tactic so as to maintain revenue levels already fixed in agency budgets.

"In certain cases, asset forfeiture has proved to be a valuable enforcement tool, however, this potential benefit must be weighed against dysfunctional consequences.... The innate contradictions of asset seizure practices have surfaced as highly controversial civil liberties violations that have increasingly eroded our sense of fairness and have engendered a frame of mind among drug enforcers of subordinating justice to profit... The inability of enforcers to effectively combat the pervasive illicit drug market provides no justification for rationalizing legal mechanisms whereby law enforcement agencies share the wealth of drug trafficking under the guise of `service' to society.

"Asset forfeiture has given drug enforcers a powerful incentive to maintain and manage economic mechanisms that allow the illegal drug market to continueta market in which the drug enforcers and drug traffickers become symbiotic beneficiaries of the `War on Drugs'."

Reprinted from: F.E.A.R Chronicles, Vol. 2 No. 2, a quarterly publication published by Forfeiture Endangers American Rights (F.E.A.R.), a non profit corporation incorporated in Washington, D.C.. Its purpose is to lobby for the reform of state and federal forfeiture laws. F.E.A.R. membership is $35 per year and includes a subscription to F.E.A.R Chronicles. Send membership fees to: F.E.A.R., 265 Miller Ave., Mill Valley, CA 94941. (415) 388-8128.

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