Critics Say Law Giving Police
Drug Funds Invites Abuse
When Congress passed new federal laws in 1984, allowing law enforcement agencies to receive forfeited monies and assets they seize from money laundering schemes, narcotics and other criminal enterprises, the purpose seemed clear.
The change was intended to help law enforcement dismantle the financial enterprises of criminals, according to Alice Dery, assistant chief of the Department of Justice's Asset Forfeiture and Money Laundering Division.
"In addition to arresting the kingpins, we said, 'Let's see what we can do to strengthen and enhance law enforcement's ability to go after criminal enterprises,'" Dery said. "Criminals have got capitalism down to a science -- they're quite the businessmen. They're here to make a profit, unfortunately at the expense of society."
But critics charge that law enforcement agencies, in an effort to increase their available funds, are depriving innocent people of their property.
In one publicized example, Florida deputy sheriffs seized more than $8 million over the past few years by pulling over "suspect" vehicles on Interstate 95.
According to testimony delivered to the House Judiciary Committee in July last year by the National Association of Criminal Defense Attorneys, out of 262 recorded seizures, only 63 resulted in criminal charges. For the innocent people who couldn't afford a lawyer to challenge the seizure in court, or didn't receive a court-appointed attorney, the sheriff's office often offered to "settle" the case. This involved getting the person to sign a written agreement in which he or she promises not to sue the county in exchange for receiving a portion of their cash back, said the testimony, based on a mix of sources including state police data, court records and local newspaper reports.
According to Richard Troberman, a Seattle lawyer and co-chair of the association's Forfeiture Abuse Task Force, the 1984 federal law that allows law enforcement to keep drug money they seize, rather than turning it over to a general treasury, has created a conflict of interest for police. "Before they made that change, law enforcement generally didn't care that much because they didn't get the money," Troberman said. "Because the money goes back to law enforcement, law enforcement is much more interested in pursuing small-time drug dealers rather than going after more serious crime -- like murderers and rapists. They'll (the police) spend a lot of resources to get a teen-ager's car, instead of chasing down a murderer."
One of the biggest critics of the Department of Justice's asset forfeiture program is the U.S. government itself. In 1990, The U.S. Comptroller General identified the program as "high-risk" and characterized by mismanagement and "internal control weaknesses."
Bipartisan efforts in Congress, spearheaded by Congressman Henry Hyde (R-Ill.), are currently under way to provide checks on the potential abuse of power by police using the asset forfeiture program.
Hyde wants legislation that calls for public safeguards, such as requiring the government to prove its case against property owners. The Department of Justice has introduced its own bill, and while Hyde's office and the Clinton administration are ironing out their differences, there is agreement on at least one major reform, ac cording to Dery: the legal burden of proof needs to be shifted from the property owner to the government.
Currently, a police department can seize someone's house, property or cash, acting on probable cause. The owner must prove in court that the property was not connected to a crime, or the asset is automatically lost.
According to Assistant Chief Alice Dery, the legal burden of proof should be on the government to prove its case, not the property owner. "We felt very strongly about this, that our bill addresses Representative Hyde's concerns," she said.
Hyde and Barney Frank (D-Mass.), in a bluntly worded statement to colleagues that explains why the bill is important, said: "With the government's interest in increasing available funds, there is little incentive for law enforcement officials to refrain voluntarily from vigorously exploiting this tool."
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