Benefits of Forfeiture
Asset forfeiture is beneficial for at least three reasons. First, it is intended to reduce criminal activity by denying offenders the profits from their crimes. Second, a byproduct of asset forfeiture is more drug arrests. Third, yet perhaps most controversially, forfeiture helps cash-strapped law enforcement agencies augment their discretionary budgets to further target criminal activity.
Much of the language surrounding forfeiture is couched in terms of removing the profit from criminal activity, but at its core, forfeiture's objective is crime deterrence. Because incarceration (or the threat of such) does not deter all offenders, forfeiture is intended to pick up where traditional punishments leave off. It has been said that "[t]he criminal views the prospect of a jail sentence as a calculated cost of generating revenue" and that "[r]ecidivism is encouraged because the subject has learned that crime does pay."42
Unfortunately, not a single published study has linked forfeiture activities to the prevalence of criminal activity. A team of economists recently offered up a theoretical argument concerning the possible deterrent effect of forfeiture, but they also argued that a mix of sanctions, not just forfeiture, would be most ideal: "by employing a mix of sanctions, with harm-based fines (or other punishment) plus confiscation of illegal gain [i.e., forfeiture], courts will be able to get closer to efficient deterrence than they can when constrained to use punishments in isolation."43
Despite the lack of evidence that forfeiture can reduce a variety of crimes, there is some evidence that forfeiture can effectively address a number of specific problems. This guide considers several such problems in the "Problems for Which Forfeiture is a Remedy" section below.
More Drug Arrests
As is clear by now, there are financial incentives for police agencies to pursue asset forfeiture. This raises a proverbial "chicken or the egg" question: Do forfeiture laws increase enforcement activity, or does enforcement activity increase the prospects for asset forfeiture? One study found that state forfeiture laws are closely connected to drug arrests, and, secondarily, to forfeiture. In other words, states with the most generous forfeiture laws, those that return the greatest percentage of forfeiture proceeds to police, saw the greatest arrest activity: "police focus relatively more effort on drug control when they can enhance their budgets by retaining seized assets."44 Controversially, this takes the focus from finding solutions to specific crime problems to revenue generation. Yet it is difficult to fault police departments for seeking revenue to support continued crime fighting.
Whether more drug arrests are desirable depends, of course, on the particular drug-related problem. Careful analysis of a local drug problem should be conducted before making this judgment. If, for example, high-volume drug arrests overwhelm the courts and/or compromise public support for law enforcement efforts, then more drug arrests (and, by extension, forfeiture) may be undesirable.
The obvious advantage of asset forfeiture is its potential to boost an agency's bottom line. Although forfeiture can yield a profit,, it can be sufficient for forfeiture to simply yield enough proceeds to offset the costs of drug enforcement, such as the operation of a multijurisdictional drug task force. Researchers have found, indeed, that forfeiture can assist agencies by augmenting their discretionary budgets.45
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