We have taken many baby steps toward ending the drug war all over the country. Legalizing medical marijuana, decriminalizing small amounts and adopting ‘treatment over time’ sentencing guidelines are some of those small victories. Another tactic that is becoming more common, and one that Columbia has tried, is to assign marijuana law enforcement to be the police department’s ‘lowest priority.’ But our local and state law enforcement agencies have incentives to ignore this law through a procedure that lets them profit from seeking out and raiding non-violent marijuana users at the expense of real crimes like rape, assault, and murder. It’s called Civil Asset Forfeiture.
I had the privilege of meeting Eapen Thampy, a policy analyst for a group called Americans for Forfeiture Reform and a former student at Mizzou. He explained to me what Civil Asset Forfeiture means and how it connects to the drug war, and I’m going to try to explain it as best I can.
There are two basic kinds of forfeitures that happen in the U.S.: criminal forfeitures and civil forfeitures. Criminal forfeitures must come after someone has been found guilty of committing a crime. Civil forfeitures work under the premise that property itself can be charged as having been involved in a crime. Even if, for example, you were to borrow my car and, without my knowledge, go pick up a pound of pot, then you were busted in my car, my car can be taken and put on trial because it was involved in the crime of drug trafficking. The same goes for any hard currency that happens to be anywhere in the area (the cops just love to find that cash, but we’ll get into that later).
Civil forfeitures are extremely difficult and costly to challenge. First of all, the burden of proof in my car example would lie with me, the car owner. In other words, to even have a chance at getting my car back, I’d have to prove my car had nothing to do with the drug trafficking in question. My car is guilty unless I can prove its innocence. There is also a very slim time window to work within, which is why a majority of these forfeitures go unchallenged. If the property owner doesn’t challenge the forfeiture, then prosecutors can refile it as an administrative forfeiture, which deals with unclaimed or abandoned property. The restrictions on administrative forfeitures are looser and prosecutors have fewer obligations to report this money.
So what the hell does this have to do with anything? Stick with me, I swear it all comes together!
The Missouri Constitution, Article IX Section 7, states, in part, that “…the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state, the net proceeds from the sale of estrays, and all other moneys coming into said funds shall be distributed annually to the schools of the several counties according to law.” In layman’s terms, all that money from fines or seized property (including the cash from auctioning off seized cars and homes) must be put in a fund that is earmarked for the construction of public schools. This law is essential because it removes direct motive for law enforcement agents to basically steal citizens’ property.
However, since the early ’90s the Department of Justice has been advising many local and state law enforcement agencies that they can transfer these forfeiture cases to their department, which has federal jurisdiction, and the education fund requirement can be circumvented. The reward for local law enforcement? An 80% kickback. 80% of every single dollar seized from citizens is thrown right back into the law enforcement agency’s budget. Booyah.
So we can now see that not only have the police found a way to fund themselves without taxpayer money, but they have a damn good reason to keep marijuana busts a high priority: it’s a killer moneymaker! Marijuana users are especially sought out because they pose little to no risk of harm to the officers (don’t worry- they always bring along full riot gear and sub-machine guns… just in case). They also have a good reason to serve search warrants late. Citizens were appalled and surprised when the raid on Jonathan Whitworth’s home last February turned up no pot–but according to case documents, police waited until Whitworth was scheduling a re-up before serving the warrant. That’s because they were waiting for that cash on hand I mentioned earlier. Because of how these forfeiture laws work, cops have no incentive to actually seize a bunch of drugs. They have to burn all the confiscated drugs (ha!), and they certainly can’t auction them off and keep the money. So they wait until the drugs have been distributed, kick down the door and grab all the money. Then they zip it of to the Department of Justice (ha!) and get 80%. If a business did this, you know what they’d call it? Money laundering!
So to recap this vicious cycle:
Step 1: Police bust into non-violent marijuana users’ homes and seize all cash and property that they can find, and assume whatever they find is linked to a crime.
Step 2: Even without a conviction, the seized property can be sent over to the Department of Justice. The DoJ takes their cut and sends the rest back to the police.
Step 3: The police buy military equipment, surveillance equipment, riot gear and high powered weapons to better outfit themselves to make more busts, seize more money, and increase their own budget (yes, that means law enforcement is actually profit motivated instead of being accountable to taxpayers).
This is a monster that is out of control. Without reforming the way forfeiture laws work, we can never expect marijuana enforcement to be the lowest priority for any police department. When cops have a motive to seize property from citizens, this is a huge blow to the Fourth Amendment and the entire Democratic process. For a much more detailed account of what forfeiture laws are and how you can help reform them, visit http://forfeiturereform.com/how-you-can-help/