This is the third in my series on the social costs of drug prohibition. You can read the first part here (prison-industrial complex) and second part (police militarization) here.
In the 1914 decision United States vs. Regan, the Supreme Court held that “the rule of evidence requiring proof beyond a reasonable doubt is generally applicable only in strictly criminal proceedings.” This decision is relevant because it subsequently allowed civil actions in real (against something, such as property) to be taken against those who have not been criminally charged in person. (against a person). Specifically, Section 881 of the Nixon Comprehensive Drug Abuse Prevention and Control Act of 1970 declared subject to forfeiture all controlled substances, as well as equipment used in the manufacture and distribution of those substances. (Stahl, 1992). With §881, the practice of civil asset forfeiture, extrajudicial seizure of property suspected of being used (or benefited) was born.
The addition of § 881(a)(6) in 1978 permitted the seizure of both profits from the drug trade and anything purchased with those profits, while the 1984 addendum of § 881( (a)(7) allows for forfeiture of any real property used to violate drug laws. Because the law enforcement agency responsible for seizing the property is authorized to keep the property – or any proceeds from its sale – asset confiscation has become an important source of revenue for these agencies. This has created a situation in which the conflict between actual enforcement of the ban and revenue collection too often plays out in favor of the latter (Boudreaux and Pritchard, 1996). This is made possible due to the different standards between criminal and civil proceedings; While criminal suspects must be found guilty beyond a reasonable doubt, victims of asset forfeiture need only be “reasonably suspected” of committing a crime.
Of course, reasonable suspicion is a highly subjective standard of proof, and current laws provide little objectivity. This is hardly surprising, as asset confiscation lies on the border between criminal law and civil law. Depending on the case at hand, the Court declared in real confiscations are criminal in some cases and civil in others. In truth, this blurred distinction serves a purpose, as it allows law enforcement to civilly punish individuals suspected of criminal activity without the increased burden of proof required for criminal prosecution. The burden then falls on the individual whose property was seized to prove his or her innocence after the fact, an often costly procedure that constitutes a blatant violation of due process. Unfortunately for these people, case law tends to view this protection as a matter of criminal and not civil prosecution.
Police department budgets are subject to the same scarcity laws as everything else, and every law enforcement priority comes with opportunity costs. Money and manpower spent on, say, investigating car thefts cannot be used to investigate homicides. Indeed, research has shown that the transfer of resources to drug control reduced the opportunity costs of property crimes, leading to an increase in them (Benson, Rasmussen, & Sollars, 1995). Asset forfeiture allows the police drug apparatus to supplement their revenue. at little cost to the taxpayer apart from seizure costs. Additionally, individuals whose property is seized often find themselves permanently deprived of their property even if they are never convicted of any crime.
The incentives for maintaining this system go well beyond local services; Although they retain the lion’s share of revenue – particularly cash seizures – the funds are often spread thin. Williams (2002) observes that some departments share a small portion of revenue with local schools, health departments, and preferred nonprofit organizations, while Blumenson and Nilsen (1998) note that courts also receive a share of these revenues. funds, which provides little incentive for judicial independence to protect the property rights of victims of confiscation. All of this contributes to a paradigm in which seizures are used in place of criminal convictions in violation of the law. Fourth AmendmentThe exclusionary rule of evidence is in effect, and the focus of drug law enforcement has shifted from fighting crime to pursuing assets (Jensen and Gerber, 1996). . Not only did this change in emphasis not reduce crime, as we will see next, but there is also evidence that it helped increase crime.
Tarnell Brown is an economist and public policy analyst based in Atlanta.
