ETHICS AND SELF-FUNDING POLICE BUDGETS:
THE
LOUISIANA DRUG ASSET FORFEITURE LAW (1)
Alan J. Prejean
Louisiana Department of Public Safety and Corrections
Ethics and law enforcement, most
believe, should occur hand-in-hand.
What can be more ethical than enforcing the laws society has enacted to
protect its citizenry. Ironically, as
law enforcement becomes more complex, especially with drug enforcement, ethical
decisions and actions become hazy. The
decision on what is ethical and what is not ethical becomes very
difficult. The Louisiana Drug
Forfeiture Law is an example of a great advancement in law enforcement
capability that has simultaneously increased the complexity of drug enforcement
activities. The law allows the individuals
responsible for collecting the forfeited assets to keep those assets for their
own use. By doing this, the legislation
increases the complexity faced by law enforcement officials when dealing with
drug forfeitures. Additionally, we are
encouraging our law enforcement professionals to act unethically when dealing
with drug forfeiture revenues. This
paper discusses the history of drug forfeiture laws and shows how the Louisiana
Drug Forfeiture Law came to be enacted.
Secondly, it recounts a popular television program’s (Dateline) report
of apparent abuses of the Louisiana Drug Forfeiture Law. Thirdly, it reports the reactions caused by
the Dateline program and the results obtained by a Legislative Audit conducted
by the State of Louisiana. Finally, specific
recommendations are given as to what we can do in the future to adjust and
improve the current drug forfeiture law in Louisiana.
Drug
use today continues as one of the nation's hottest political topics. The war on drugs, which began as a national
campaign, has spread among the states.
Today, nearly every parish, county, city, and state police department
has its own drug task force unit. The
drug war has become big business for law enforcement officials as well as drug
dealers. The task forces attack drug
dealers by playing the same game of buying and selling but follow different
rules. The popularity of anti-drug
programs, such as D.A.R.E., encourages the law enforcement community to voice
its concerns of the lack of effective tools for fighting the war on drugs. From this effort emerged the Federal Drug
Forfeiture law. This law basically
allows the forfeiture of any assets associated with drug sale activity. Law enforcement officials have confiscated
billions of dollars in money, cars, houses, boats, and property from suspected
drug dealers. State governments enacted
their own personal drug asset forfeiture laws modeled of the federal law. The
law allows the proceeds to be divided up among the agencies making the bust,
the District Attorney’s office, and the Court fund prosecuting the case, with
the funds to be used to finance the continuing war on drugs. Law enforcement officials believe the law is
an invaluable tool in the war on drugs.
Opponents of the law state that this violates the due process clause of
the U.S. Constitution and that we are giving the police an incentive to take
people’s property. Nevertheless, this
tool is used very extensively in Louisiana, particularly on the Intestate highways.
This
paper traces the history of drug asset forfeiture laws, examines their
application in Louisiana as revealed by a recent state audit, and considers the
ethical implication of a budgetary tool such as this. Throughout, data from the parishes featured in a television
magazine “Dateline” episode will be used, as well as from the state audit that
show precipitated.
In the late 1970s, drug forfeiture
became a hot topic among politicians and law enforcement. Society demanded tougher penalties for
crimes involving drugs and racketeering.
Politicians, interested in being re-elected, listened to the interest
groups and passed legislation approving drug forfeiture. The forfeitures themselves would actually
finance the program that would collect them.
Thus it appeared to be a win-win situation for the politicians. Law enforcement agencies also win because
their drug enforcement task forces are financed by the forfeited funds,
allowing them to spend appropriated funds on other programs. Among politicians and law enforcement officials
alike, this law was very popular, so popular in fact, that ethical concerns
were never raised.
In 1987 the Committee Report on
Bail, Sentencing, Penalties, and Asset Forfeiture, prepared by the U.S.
Department of Justice, recommended that the states act in four ways to use
seized assets. Table 1 summarizes these
actions (DEA, 1987: p. 11). As revealed by these recommendations, this
law intended a strong attack on the drug dealers. We can also see the budgeting intentions in the program, such as,
the sharing of revenues and funding of drug abuse programs. From the outset, the drug asset forfeiture
law was intended be self-supporting from forfeited funds. The committee seemed to foresee possible
abuses by recommending the review of assets to ensure their use in drug abuse
programs (DEA, 1987: p.11). Beyond
this, there was no discussion of the ethical implications or needed safeguards
in the new system.
Table 1DEA Recommendations, 1987. |
|
|
Assets acquired through illegal drug
transactions. The
states should pass legislation allowing the seizure of property used and
directly connected to illegal drug activity.
|
Sharing of seized assets. States were
recommended to adopt legislation permitting the sharing of forfeited assets
between federal and state authorities.
|
|
Supplementing drug abuse
programs. States
should review statutes to assure that forfeiture assets are used for drug
abuse programs within the states. |
Asset forfeiture units. States should
establish, fund, and maintain separate Asset Forfeiture Units. This will develop expertise in pursuing
assets of the offenders. |
|
(DEA,
1987) |
|
Probable
cause is the most important concept within the
Criminal Justice system. The Fourth
Amendment of the U.S. Constitution guarantees “The right of the people to be
secure in their person, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched and the person or things to be
seized.” Probable cause is defined as a
level of certainty more than a suspicion, but less than proof beyond a
reasonable doubt. Before a search
warrant can be issued, or a search considered valid, probable cause must be
established by the investigative agency.
With respect to vehicle stops, any traffic law violation satisfies
probable cause, allowing the law enforcement official to stop the vehicle. A
few roadside questions, such as, where are you going, who is that in the car
with you, can establish probable cause to search the vehicle. If the driver is arrested, a search of the
vehicle incidental to the arrest is legal.
With probable cause established, a search warrant can be issued and
executed. Before a judge signs a search
warrant, he must decide whether he believes that probable cause does in fact
exist. The judge must decide if the law
enforcement officer’s probable cause affidavit telling the judge exactly where
the illegal items are housed and what they are, is reasonable. The judge also weighs the credibility of the
witnesses providing the information in the probable cause affidavit.
There are exceptions to the law
requiring a search warrant. The most
important is the “plain view” rule.
This states that if a police officer is in a place where he has a lawful
right to be, and he sees what he believes to be contraband, probable cause is
established and the officer can confiscate the contents or, if tactically
feasible, gain a search warrant.
Louisiana adopted its Drug Asset
Forfeiture Law in 1981 as Act 616, which included provisions relative to
forfeiture of Controlled Dangerous Substances (CDS) and contraband (Louisiana Revised Statute Title 40 Chapter
26). In 1989, Act 375 created the
property forfeiture law and provided procedural guidelines for dealing with the
handling of seized property and drug assets (RS 40:2616). When property is
forfeited, the District Attorney will supervise auction of the property through
a public sale. All money collected
shall be deposited into the special Asset Forfeiture fund. After seizure of CDS or property, one of the
following steps must be taken:
·
If approved by the seizing agency, retain it
for official use or transfer it to the proper agency.
·
CDS can be destroyed or used for
investigative purposes upon approval of the District Attorney after no less
than 20 days after the seizure.
·
A public sale without appraisal will be
conducted. The proceeds shall be
deposited in the Special Asset Forfeiture fund
(RS 40:2616).
The Special Asset Forfeiture Fund is
a sub-fund within the special District Attorney’s Forfeiture Trust fund. The court handling the forfeiture case holds
the responsibility to supervise the distribution of forfeited property or
moneys derived from the sales of such property. The assets should be dispersed among the agencies that
participated in the arrest or seizure of the property. This fund is subject to public audit. The public audit part of the legislation
appears to be standard bill drafting practice in Louisiana, and the money shall
be divided in the order of priority as shown in Table
2.
|
Table 2 Distribution of Proceeds from Seized
Assets. |
|
Pay
any outstanding costs associated with the seizure of the property. |
|
Disperse
remaining funds according to the following formula: |
|
60% to the agency making the
seizure, for use in drug related law enforcement. |
|
20% to the Criminal Court Fund. |
|
20%
to the District Attorney’s office that employs the attorney that handled the
forfeiture action, to further judicial action in future drug forfeiture
cases. |
|
(Louisiana
Legislative Audit Commission, 1998) |
The District Attorney will require
agencies to take control of property and have CDS destroyed in accordance with
current statutes. They must keep
records and make reports:
Not withstanding any other
provision of this Chapter, each District Attorney shall no later than March
first of each year, submit to the Governor, the President of the Senate, the
Speaker of the House, the Chief Judges of the Orleans Parish Criminal District
Court, and the Clerk of that Court, a report which lists the total amount of
seized funds or estimated value of property seized and the amounts of funds or
property distributed to any entity, agency, or fund, pursuant to the provisions
of this Chapter during the previous calendar year (RS 40:2616 D).
As we can see, rules and regulations
regarding the handling of seized property and assets are clearly stated in the
Louisiana Drug Asset Forfeiture Law (RS 40:2616). The problem arises when trying to verify if all participants are
doing what is required of them by the law.
Opponents argue that we have the wolf guarding the hen house by allowing
the District Attorney, who receives 20% of the seized assets, to be in charge
of reporting the figures of the total amount recovered. Opponents continue to state that police
officers overstep their authority by taking property or large sums of money not
connected to criminal conduct. Could we
be encouraging our law enforcement officials to stop innocent motorists and
take their property? Exactly this
happens in Louisiana according to a national television magazine show.
On January 3, 1997, Dateline broadcast that Louisiana law
enforcement officers had been stopping motorists without probable cause and
illegally seizing their property, including money and automobiles. Such seizures and arrests occurred even when
no drugs or evidence of drug activity was found. Interstate 10 in Jefferson-Davis and Cameron Parishes was
identified as the area where the seizures were taking place. The televised report featured John Larsen
for "Dateline" who, with a television crew, rode through the reported
areas and were stopped by Louisiana law enforcement officers. It was stated that the crew was stopped for
no reason and asked how much money they had on them
(www.ndsn.org/Feb97/Louisiana/html 1998).
Dateline alleged that the
illegal stops target mostly out of state drivers and minorities. On one of the stops, the television crew was
followed for thirteen miles before being pulled over for allegedly slowing down
suddenly and driving erratically. The
television crew recorded the car’s cruise control set on sixty-four miles per
hour. Dateline stated, “You’re driving along a highway, obeying every
traffic law, and a police officer pulls you over. It happens all the time in Louisiana. Innocent people have been searched, jailed, and had their
property seized. What’s going on?” (Smith,
1997: p. 1B) As shown in Table 2, under
state law, for a motorist to regain their property requires the immediate
posting of bond equal to 10% the property’s value or $2,500, whichever is
greater. This is the highest bond in
the nation. Dateline also attacked the distribution of seized funds seized.
Dateline's
story quickly attracted much negative comment on the law. U.S. House Judiciary Committee Chairman
Henry Hyde (R-IL) states, “It is a classic conflict of interest to have judges
-- who receive money directly from the forfeitures -- determining if the
seizure was made legally” (www.ndsn.org/Feb97/Louisiana.html 1998).
Baton Rouge attorney Jim Boren has loudly attacked the forfeiture law,
claiming that forfeiture corruption is statewide and law enforcement officials
use the money for other reasons than for drug enforcement and citing a district
attorney who purchased a fish tank for his office with seized money. Boren believes that the seized money should
be deposited into the state General Fund so it could be used for other state
programs and not just for drug enforcement.
“The judge is afraid to declare a search improper because they are
afraid they will be called ‘soft on crime’.
The State of Louisiana is aware of the abuses, but no legislator has the
courage to sponsor reform legislation for fear of being labeled as the
spokesman of the dope dealers of America.
A lot of innocent people get hassled and have to fight to get their
property back because we are afraid to reform the system” (Smith, 1997: p.
1B). The Advocate, on January
11, 1997, published that Dateline
showed abuses “encouraged by a system that anoints law enforcers with too much
power and rewards them for stretching those powers.” The paper also stated that the system “tempts prosecutors to go
easy on real drug lords by making deals to keep seized cars or drug money in
exchange for dropping charges and letting the criminal walk.”
Reacting to the Dateline story, Dan Kyle, the State Legislative Auditor, said the
overall program of forfeiture worked well but that he would conduct a
legislative audit looking into the funds of some of the parishes listed in the
program (Smith, 1997: p. 1B). The
Louisiana State Police issued a statement: “Louisiana State Police believes it
would be a mistake to throw out the law because some officers are abusing it”
(Dyer, 1997a: pp. 1B and 2B). Louisiana
State Police believe the Dateline
program subconsciously gave viewers the notion that State Troopers were at
fault by referring to local law enforcement officers as “Louisiana
Police”. State Police are only after
the big guys receiving the shipments and seized forty-five cars last year.
Louisiana State Police Superintendent W.R. “Rut” Whittington stated, “Louisiana
is mainly a transit point -- the big folks are on the East coast and in Mexico
and we really help folks in other states make a lot of seizures (involving
major drug dealers).”
Following the broadcast, the local media began to report the public
outcry over the activities occurring in Louisiana. State and local tourism bureaus were bombarded with calls from
organizations considering canceling conventions in our state. This constituted a serious threat as
Louisiana gathers a significant amount of its revenue from tourism, e.g., Mardi
Gras. Lt. Governor Kathleen Blanco,
head of the State’s Tourism Office, estimated that Louisiana would lose about
$150 million in tourist revenue because of the Dateline episode’s negative impact. Such a significant blow to the Louisiana budget could result in
programs failing to be funded.
Chairman Steve Windhorst of the
Louisiana House Criminal Justice Committee found the reports “very disturbing”
(Dyer, 1997a: pp. 1B and 2B). The
overall atmosphere suggests legislative efforts soon to change the Drug Asset
Forfeiture law. Louisiana Governor Mike
Foster “is open to looking at changes in the law as long as they don’t
undermine the actual law enforcement” (Dyer, 1997a: pp. 1B and 2B). The executive director of the Louisiana
District Attorney’s Association, E. Pete Adams, supported minor changes
proposed to the law to correct any abuses and the opportunity for abuse (www.ndsn.org./Feb97/Louisiana.html
1998). Clearly the overall reaction by
state officials defended the status quo.
Complaints also came from private
citizens, appearing in The Advocate on February 8, 1997 (p. 8B). Ray D. Gibson stated the south Louisiana
parishes robbing the very people they are sworn to protect. “How did law enforcement people get the
power to confiscate your vehicles and property?” The citizens of Louisiana came to believe that any one of them
could be victimized next. The police
were compared to “children in a candy shop” because they had such a variety of
ways to seize property.
On January 16, 1996, the Louisiana
Supreme Court upheld the constitutionality of the Louisiana Drug Asset
Forfeiture Law with the decisions in two cases: State v Jackson, and State v 1979 Cadillac Deville. The Supreme Court ruled that the forfeitures
in both cases did not violate double jeopardy provisions of the 5th
Amendment or LSA Constitution p. 15, Articles 1 and 15 (Supreme Court of
Louisiana, 1996). Bennett R. Lapoint,
Assistant District Attorney for the 31st Judicial District,
responded (1997: p. 8B) that local criminal defense attorneys in the hire of
drug-dealing clients fueled the Dateline
report. Lapoint stated, “The resort of
criminal defense attorneys to the liberal media was undertaken after their
constitutional attacks on Louisiana’s Drug Asset Forfeiture statute were thrown
out by the Louisiana Supreme Court.
When one can’t win fairly, one should resort to other means appears to
be the strategy of these criminal defense attorneys.” Lapoint used the standard defense: forfeiture is designed to take
the funds away from the criminals who deal drugs and use the funds to support
the high cost of fighting the war on drugs.
Lapoint finally pointed out the effect the Dateline report has had on the law enforcement community in
Louisiana. “The report and following
public opinion have had an adverse ‘chilling effect’ on law in the state. Police officers are being instructed by
superiors to back off, and many have lost their incentive to pursue drug
runners who carry their drugs and drug money through this state. They do not believe that the majority of
people are supporting the police in their efforts. So why should they risk their lives to interdict these dangerous
criminals?”
This national outcry of abuse,
illegal stops, and misappropriation of funds has hit hard in Louisiana. In response to the growing concerns of the Dateline report and public outcry, Dan
Kyle, the State’s Legislative Auditor published an audit on May 19, 1997, ten
days before the final passage of reform legislation. This audit questioned the use of seized assets under the Drug
Asset Forfeiture law in Jefferson-Davis Parish, Calcasieu Parish, and the City
of Sulphur. The audit also targeted the
District Attorneys for the Fourteenth and Thirty-First Judicial Districts and
the Criminal Court Fund for Calcasieu Parish.
The audit addressed the issues listed in Table 3.
Table 3Focal Points Examined in 1997 Legislative Audit into Drug Asset Forfeitures |
|
§
The forfeited funds maintained by
all the District Attorney’s Offices |
|
§
Distribution of funds by the
District Attorney’s Office |
|
§
Expenditures made using seized funds |
|
§
Accounting procedures of seized
property by the Sheriff and cities |
|
§
Auction transactions concerning the
seized property. |
|
§
Criminal court funds for Calcasieu
and Jefferson-Davis Parishes. |
|
§
Louisiana Revised Statutes, Attorney
General opinions, and related regulations dealing with the drug asset
forfeiture law. |
|
§
Employee interviews of investigated
agencies. |
|
§
Investigated information to achieve
the auditor’s goal. (Kyle, 1997) |
Numerous errors
were discovered during the process of the investigative audit. The following are errors that were found in
the accounting of the seized funds.
“The District Attorney for the Thirty-First Judicial District
failed to disperse all forfeited assets in a timely manner. The District also failed to remit the
proceeds from the sale of forfeited vehicles to the Sheriff and Criminal Court
fund. The District failed to properly
account for the funds in the Asset Forfeiture Trust Fund” (Kyle, 1997:
p.1).
Funds seized in
two cases, June 1994 and February 1996, in the amount of $7,445 had not been
dispersed as of February 1997. Revenue
from two auctions of seized cars totaling $4,616 was not properly
dispersed. The balance of the Asset
Forfeiture Fund was in error by $4,305.
The total did not account for the $4,305, which was accrued interest.
The auditor recommended that the District Attorney disperse funds in a timely
manner in accordance with the law and published regulations. An accurate accounting system should also be
maintained in the District Attorney’ Office.
The Jefferson-Davis Parish Sheriff’s Office also was found to have
errors in the accounting that resulted in underpayments to the District
Attorney’s Office and the General Fund.
The Jefferson parish Sheriff’s Office made a mistake concerning proceeds
from a June 1995 auction. The mistake
resulted in the District Attorney’s Office receiving $10,000 less than legally
mandated. Overall, this resulted in the
District Attorney's Office and the Criminal Court Fund receiving $2,000 less
than required by law. The Sheriff
admitted making the error and the legislative auditor recommended that the $10,000
to be remitted to the District Attorney’s Office for proper dispersal.
While the auditor was investigating
the budgets of the Calcasieu Parish Sheriff's Office, they found errors of
remittance to the District Attorney and failure of the Sheriff’s Office to
refund seized cash. The audit revealed
that the Calcasieu Parish Sheriff’s Office received $113,478 from the sale of
seized vehicles in 1994, 1995, and 1996, but the Sheriff’s Office did not remit
these funds to the District Attorney as required by law. The recommendation is that the Sheriff’s
Office should remit these funds immediately to the District Attorney for proper
dispersal.
The Calcasieu Parish sheriff’s
Office also failed to refund seized cash in the amount of $741 to people who
were not eventually prosecuted. The
proceeds were recorded as narcotics revenue instead of refunded. The auditor recommended immediate refunds to
the affected people and revised procedures in the Sheriff's Office to prevent
recurrence.
The city of Sulphur was found to
have not remitted seized funds to the District Attorney or remit auction
proceeds to the District Attorney.
While conducting the investigation, the auditors found $2,625 in the
Sulphur Police Department safe, money that originated from eight seizures
dating back to 1989. In the past, the
police department used to hold funds until the court case was settled, then
send the funds to the District Attorney.
Subsequently, the rules changed and the police department has been
remitting the seized funds immediately to the District Attorney. Ironically, the police department still had
possession of the mentioned seized funds.
Captain Keith Andrus, head of the Sulphur Narcotics Division, informed
the legislative auditor that “$200 had been borrowed from the safe and used to
supplement the ‘buy money’ petty cash fund.”
Buy money is used to pay
confidential informants for information and to purchase illegal drugs during
law enforcement operations. Captain
Andrus further explained that the $200 was in envelopes in his desk. He then removed the money and returned it to
the safe. The money has been sent to
the District Attorney as regulated by law.
The auditor recommends that the police department should not mix seized
funds with their ‘buy money.”
The Sulphur Police Department failed
to send proceeds earned from auctions to the District Attorney’s Office as
required. After collecting $160,520
from auction sales, the Sulphur Police Department spent $4,179 to pay for labor
and advertising costs associated with the auction. They remitted 20% to the Criminal Court Fund and 20% to the
District Attorney’s Office. The city
was supposed to remit all collected assets to the District Attorney’s Office
first. The auditor recommended that the
Sulphur Police Department follow the regulations of the Drug Asset Forfeiture
Law and remit all proceeds from the sale of seized property to the District
Attorney’s Office.
In addition to accounting issues,
the Legislative Audit included a discussion of whether the seized funds were
actually being used for drug related law enforcement. Overall, it was discovered that the funds were being used
properly. However, incidents involving
the Jefferson-Davis Parish Sheriff’s Office and the Sulphur Police Department
show that the funds may have been used on expenditures not related to the drug
enforcement budget.
Jefferson-Davis Parish Sheriff’s
Office
During the years of 1994, 1995, and
1996, 50% of the salaries of regular patrol deputies, $265,947, were paid by
funds derived from the Drug Asset Forfeiture Fund. The Parish auditor, the Sheriff, and the District Attorney agreed
on this. In 1994 and 1995, $6,814 was
used to purchase computers that are used by all the Sheriff’s Office, not just
narcotics. $532, in 1994,1995, and
1996, was used to purchase meals at a local restaurant. No evidence could be obtained that all meals
were drug related. $67 was spent on the
purchase of hamburgers for the jail from the Jennings High School girls
athletic department.
City of Sulphur
From 1994 through 1996, a new
computer system was purchased for the entire department at the sum of $195,137
from the Drug Asset Forfeiture Fund.
The police department as a whole utilizes the system, not just drug enforcement. In 1995,eleven new vehicles were purchased
totaling $185,493. All vehicles were
given to regular patrol officers, not narcotics. In 1994, a radio system upgrade cost $143,500. The entire department uses the system. In 1994 and 1995, the department remodeled
the police department building at the sum of $33,950. It was not strictly for the use of drug enforcement
officials. $18,751 was spent to
purchase two generators, an air compressor, and a tire tool, not strictly for
drug enforcement use. During the years
from 1994 till 1996, $2,031 was spent to send police officers to three seminars
not related to drug enforcement. The
three seminars were hypnosis training, Managing Police Discipline and Personnel
Administration, and a Certified Chemical Weapons Instructor Course. The Sulphur Police Department also used drug
asset forfeiture money to reimburse the Calcasieu Parish Sheriff’s Office
$1,200 for DNA testing used in a local aggravated rape and kidnapping case in
1994. The Sulphur Police Department
routinely shifts money from the forfeiture fund to the petty cash fund. Out of the $43,500 that was transferred,
only $27,946 was used as intended for buy money under the Drug Asset Forfeiture
Law. The remaining $15,554 was spent on
office supplies ($3,851), employee meals ($3,065), and automobile expenses
($822). There was no evidence that
these miscellaneous expenditures were related to drug law enforcement.
The legislative audit concluded that
all the agencies defended their expenditures with the claim that “all of their
officers, not just narcotics officers, are involved in the fight versus drug
related criminal activity.”
Consequently, the Drug Asset Forfeiture Law does not distinguish between
direct and indirect support of drug-related law enforcement. The law states “that funds received by the
seizing law enforcement agency must be used for drug law enforcement” (RS 40:2616). No statement addresses indirect support of drug-related law enforcement
activities. The auditors recommend that
all expenditures of funds obtained through the Property Forfeiture law should
be supported by documentation of the relationship of the expenditures to drug
law enforcement. Calculating the
percentage of salaries and equipment used to combat drugs and reimbursing the
items accordingly can do this. The
auditor also recommended to the legislature that they should consider passing
the legislation that “allows an indirect use of these funds in drug law
enforcement, or specifically prohibit the use of funds for any purpose other
than directly related to the enforcement of drug laws” (Kyle, 1997: p.3).
Following the public outcry after
the Dateline story, politicians and
law enforcement officials alike called for modest adjustments to the Drug Asset
Forfeiture Law. The legislative audit
represented a huge first official step in the reform process and provided much
of the factual basis for subsequent legislative action. The executive director of the Louisiana
District Attorney’s Association wrote to Governor Foster proposing revisions. The provisions would raise the state’s
“burden of proof” in order to keep forfeited funds and would lower the 10% bond
required for a person to protest the forfeiture of their property. The revisions, Adams stated, “should restore
public confidence in the law” (Garland,
1997d: p.7A).
Several legislators also voiced
their concerns about the forfeiture law.
Representative Audrey McCain urged continuing to allow seized funds to
be used to fight the war on drugs. She
also wanted to reduce the incentives that lead to questionable seizures while
increasing accountability on how the money is spent (Redman, 1997a: p.1B). McCain's bill HB314 would change the way
seized funds are distributed. Under the
new bill, 25% would go to the agency making the seizure, and 5% would go to the
State Crime Victim’s Reparation Fund.
The remaining 70% would go to a statewide fund used to support drug
education and enforcement activities.
Law enforcement officials themselves
have proposed five changes to the Drug Asset Forfeiture Law:
§
Officers must be in uniform and in marked
units when stopping people guilty only of a traffic offense.
§
Motorists can only be detained long enough
for the officer to write a ticket.
§
Officers are prohibited from trashing
vehicles that they search.
§
More procedural controls for District
Attorneys to take permanent possession of forfeitures.
§
A set of ethical standards for forfeiture
cases that must be followed by all local law enforcement agencies.
On May 29, 1997, the Louisiana House
of Representatives voted in favor of HB 1839 by Rep. Stephen Windhorst that
makes it tougher to seize people’s assets.
The bill made four changes in the current law. First, the burden of proof would be raised in cases concerning
seized assets. Second, the bond for
establishing a claim to be returned seized asset is reduced to 10% or $2,500,
or whichever is less. Thirdly, a
court must determine within 72 hours if probable cause exists to proceed with a
forfeiture hearing. Finally, property
seized but not eventually forfeited must be returned in the same condition it
was taken. Also, the distribution of
seized funds would be changed to 60% going to the seizing agency, 20% to the
local District Attorney’s office, and 20% to a new Drug Asset Forfeiture Grant Trust
Fund within the local Judicial Expense Fund. The Louisiana Commission on Law
Enforcement and Administration of Criminal Justice would use this fund to make
grants for the war on drugs (Redman, 1997b: p.12A). On June 18, 1997, the Senate voted 35-2 to pass HB 1839 and
shipped it back to the House of Representatives with one amendment, which
restored the existing allocation of money seized in forfeiture cases (Shuler,
1997: p.21A). The revised Drug Asset
Forfeiture Law took effect in the fall of 1997 (RS 40:2616).
Concerns that drug asset forfeiture
have not only hit Louisiana, they also appear to exist nationwide. Mass confiscation appears to have become
politically fashionable across the country.
This is not surprising since it appears to kill two birds with one
stone: not only is the war on drugs being visibly fought, but the funds
financing the war come from the spoils.
Typically, politicians believe that the less taxpayer’s money they spend,
the happier the politicians and taxpayers are.
This is a direct incentive to some politicians to back drug forfeiture
laws. “The use of forfeiture has
probably increased hundred-fold in the last 10 years,” states Steven Kessler, a
New York attorney, who notes that 80% of persons whose property has been seized
were never charged with a crime (www.cyberhanve.com/libertarian/property.seizure.Rights.html
1998). Could it be that we are
forgetting about the major criminals and going after the quick seizure and
arrest? Does this constitute legalized
theft? The public appears to believe
that law enforcement agencies have distorted their priorities in just such a
way. It appears that government
officials are seizing people’s property based solely on “hearsay” from
anonymous informants. Police generally
will not reveal their sources.
Ethical Issues Involved in the Drug Asset Forfeiture Law
Acting
ethically plays an enormous role in law enforcement today. Everyday, the foot soldiers are out on
patrol, faced with discretionary and judgment decisions. When the complex issues of drug forfeitures
are added, it is imperative that law enforcement professionals have the ethical
tools they need to perform.
Ethics is a theory or set of
principles of conduct or moral values that govern an individual or group. Ethics deal with what is good or bad with
regard to duty and obligation. We tend to
learn these rules of professional conduct from our professional organizations
and universities. The world today is
becoming global in nature. Actions in
Baton Rouge, Louisiana, can have an affect on what happens in Florida next
month. This makes it essential that we
address ethics within our drug forfeiture activities.
The most common ethical question
raised concerning the Louisiana Drug Forfeiture Law is that the actual
departments that arrest and prosecute also collect revenue directly from the
same arrest. These actions seem unethical,
embodying the classical wolf guarding the chicken house dilemma. Taken a step further, this premise shows how
the fund distribution process could influence individuals to be unethical in
their performance.
Downward delegation, the opposite of
globalization, potentially creates problems. As delegation to lower levels
increases, patrol officers make more discretionary decisions. When dealing with
drug forfeitures, this discretion could seem to promote unethical
behavior. For example, if a patrol officer
decides not to arrest a subject for possession of marijuana, but confiscates
the drug and money on the individual, has justice been served? Has ethics been served?
To combat the appearance and
occurrence of unethical actions, departments must train employees from the
bottom up. Increasing ethical awareness
among employees will give better decisions at the lower levels. Employees will begin to do what is right,
not what is expected. Also, at the
upper levels, ethical training will allow for better standards and operating
procedures to be developed. Teaching
ethical concepts and how they interrelate with our professional and personal
lives can create an organization that acts ethically from the lowest to the
highest levels in its hierarchy.
Opponents believe that the Drug Asset
Forfeiture Law violates the basic principles on which this country was founded,
principles based on the theory of a republican government. Constitutional rights in the U.S. derive
from these principles. If the police
can become their own judges in forfeiture cases, they will begin to act on
individual interests instead of the public interest or the law. Ten years of forfeiture activity have
brought us no closer to winning the war on drugs than before (Harmon, 1997: p.
C1). The idea behind forfeiture
distorts public priorities. Since the
money forfeited is typically used to secure more forfeitures, the goal becomes
lost. What is the clear mission? Yes, it is to deter drug deals and abuse,
but could it also be a goal to seize enough money to finance the war? Redirection of the funds in other programs
such as domestic violence, community policing, and improved training would win
back some of the public’s trust the police have lost and might do more to curb
the drug problem. It would be the
ethical resolution of the problems with the use of the funds from forfeiture.
The Louisiana Drug Asset Forfeiture
Law provides a substantial amount of revenue to law enforcement agencies. The law strictly dictates where, when, how,
and who can use seized money. Unsurprisingly, controversy has arisen
concerning the use of forfeiture funds.
Thus, I offer the following recommendations to increase productivity and
improve outcomes associated with drug forfeitures. First, allow the law enforcement agencies to spend the seized
funds on programs that indirectly support drug enforcement. This gives the manager flexibility to use
funds, generates creativity among the foot soldiers, and increases
productivity. As we agree that we do
not want them stopping everyone in sight, my second recommendation is for
increased specialized training, motivation, ethical standards, and morale that
should reduce complaints about false seizures.
Third, I recommend that each agency turn in a budget every two years to
the Legislative Auditor or a new agency created for this task, for review and
approval. This agency will oversee the
use of the Drug Asset Forfeiture Funds.
The agency will not dictate how to use the funds, but will advise the
agencies as to what is appropriate and legal.
The Drug Asset Forfeiture Law is a powerful tool for law
enforcement. With minor adjustments, I
feel it can achieve the goals and mission it was created to accomplish while
avoiding the encouragement of unethical behavior.
Boulard, James.
(October 1998). “Seizure Fever: The War on Property Rights.” The Libertarian Library. Www.cyberhaven.com/libertarian/property-seizure-rights.html.
Dyer, Scott.
(1997a). “State Police defend
forfeiture law.” The Advocate, January
24,1997, p.1B-2B.
Dyer, Scott.
(1997b). “House panel action targets
drug forfeiture abuses.” The Advocate,
May 9,1997, p. 6A.
Dyer, Scott.
(1997c). “Use of drug forfeiture money
hit.” The Advocate, May 23, 1997,
P. 6B.
Dyer, Scott.
(1997). “Dateline to rerun Louisiana show; Studies say impact on tourism unlikely.” The Advocate, August 18, 1997, p. 1A.
Fourth
Amendment, The Constitution of the United States of America.
Garland, Greg.
(1997a). “I-10 drug searches; Seizure
law critics point to Sulphur police
tactics.” The Advocate, February
9, 1997, p. 1A
Garland, Greg.
(1997b). “Louisiana Supreme Court won’t
hear forfeiture case.” The Advocate,
February 14, 1997, p. 7A.
Garland, Greg.
(1997c). “Forfeiture law invades
innocents’ privacy too.” The Advocate,
February 19, 1997, p. 7A.
Garland, Greg. (1997d). “District Attorneys propose revisions to
Louisiana’s asset forfeiture law.” The
Advocate, March 12, 1997, p. 7A.
Gibson, Ray.
(1997). “How did offices get this
power?” The Advocate, February 8, 1997,
p. 9B.
Harmon, Brian.
(1997). “Special Report: Law
enforcement-drug forfeitures criticized
Oakland
prosecutors’ plan to form team to take possessions would lead to abuse, some
say.” The Detroit News, August 12,
1997, p. C1.
Kerrigan, John.
(1994). “When Drug Forfeitures Touch
the Little Guy; Traffickers Families,
Employers and Banks are Hurt. What can
their lawyers do?” Pennsylvania Law
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Kyle, Daniel.
(1997). “Drug Asset Seizure and
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