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Forfeiture also has been fairly heavily criticized. Critics point to the "drug war's hidden economic agenda"46 and refer to the means by which forfeiture compromises due process protections47 and encourages law enforcement blunders.48 Critics further claim that forfeiture circumvents proper appropriations channels, threatens due process protections, and guarantees a conflict of interest between effective crime control and creative financial management.
The Civil Asset Forfeiture Reform Act of 2000 (CAFRA)49 made several changes to federal forfeiture law. Key provisions of the law include the creation of an innocent owner defense (for cases in which an innocent individual's property is targeted for forfeiture) and a shift in the burden of proof from the property owner to the government. Concerning the latter, property owners were previously required to prove their property was not subject to forfeiture. Now the government must prove by a preponderance of the evidence that property is subject to forfeiture. Although CAFRA minimized much of the controversy associated with asset forfeiture, several criticisms of the practice still stand out.
In a rather creative study, Miller and Selva50 used covert participant observation to document asset forfeiture activities. One of the authors acted as a confidential informant for a city's undercover narcotics operation after he established a relationship with drug enforcement officials in the area. The results of the study were startling; agents were selective in their enforcement efforts, and the goal of seizing assets took precedence over the goal of taking narcotics out of circulation.
Referring to one case where a drug dealer received a large quantity of cocaine, Miller and Selva reported the following: "The researcher...was surprised when he was instructed to observe the suspect's transactions to determine the rate at which the cocaine was being resold. Less drugs meant more cash, and the agents objective was to seize currency rather than cocaine. The case was successful as to proceeds, but perhaps not in view of the quantity of cocaine that officers knowingly permitted to reach consumers" (Miller and Selva, 1994, p. 328).
The Miller and Selva study was published in 1994, well before federal forfeiture reforms were put in place. Even so, some more recent studies have raised similar concerns. For example, the author of one study surveyed 1,400 law enforcement administrators from around the nation and found that more than 60 percent of them either agreed or strongly agreed with the statement that "forfeiture is a necessary budgetary supplement for my agency."51 The authors of another study found that law enforcement agencies in restrictive forfeiture states receive considerably more equitable sharing payments than their counterparts in generous forfeiture states.52 The logic is that the agencies in restrictive forfeiture states teamed up with federal officials to participate in adoptive forfeitures, in an effort to enhance the prospects of receiving forfeiture proceeds.
In fairness, at least one published study showed that forfeiture activities have no apparent connection with state legal arrangements.53 In particular, "asset forfeiture does not have a substantial impact on the policing priorities of local agencies."54 The study, which was limited to jurisdictions in Ohio, also found that agencies pursued criminal forfeiture more often than civil forfeiture. The reason for this is that Ohio civil forfeiture laws require that a criminal prosecution accompany a civil forfeiture action.55
One of the advantages of forfeiture identified earlier is its ability to augment discretionary budgets. This can be a disadvantage, too, particularly if budget-setting authorities catch wind of an agency's successes with forfeiture. Some jurisdictions have reportedly supplanted (or shorted) regular police operating budgets on the assumption that police could make up the shortfall with asset forfeiture.56 As the authors of one study observed:
Local governments capture a significant fraction of the seizures that police make by reducing their other allocations to policing, partially undermining the statutory incentive created by seizure laws...Police, in turn, respond to the real net incentives for seizures once local offsets are taken into account, not simply the incentives set out in statute. When police are really allowed to keep the assets they seize, they increase anti-drug policing.57
Forfeiture laws tend mostly to target "consensual" crimes and those with the greatest potential for profit. To the extent law enforcement agencies are drawn to forfeiture due to the potential to receive proceeds, this could discourage them from channeling resources into areas where the potential to receive forfeiture proceeds is nil. At the least, generous forfeiture laws appear to increase agencies' enforcement activities in areas where the chances of receiving proceeds are greatest. As one study concluded, since the Comprehensive Crime Control Act of 1984, "[t]he relative allocation of state and local law enforcement resources has shifted dramatically towards drug enforcement, the major source of asset confiscations."58 In fairness, though, it can be argued that much of the nation was focused on waging a war on drugs during that time, irrespective of forfeiture laws.
Forfeiture windfalls can also reek of impropriety. For example, some small town agencies have received an excess of forfeiture proceeds and used the money to purchase items that some considered unnecessary.59 Some jurisdictions have also received negative publicity for controversial plea agreements with known drug offenders. In one case, a dealer faced 15 years in prison under one state's tough anti-drug laws. The dealer surrendered his interest in $31,300 in cash seized from his apartment and received only a five-year prison term. Plea agreements such as these raise several questions, and, to some, seem like a version of sanctioned extortion. Researchers have uncovered many other examples of questionable forfeiture-related plea agreements that look at least somewhat questionable.60
Asset forfeiture has been extensively criticized on constitutional grounds.61 Critics allege that forfeiture violates, among other constitutional provisions, (1) the Fifth Amendment's double jeopardy clause; (2) the due process clauses of the Fifth and Fourteenth Amendments; and (3) the Eight Amendment's excessive fines and punishment clauses.
Concerning the first challenge, the U.S. Supreme Court held that civil asset forfeiture does not violate the Fifth Amendment's double jeopardy clause.62 In other words, asset forfeiture does not constitute "punishment" in the traditional sense. In contrast, the Supreme Court held that forfeiture can violate due process.63 At one point, there was no federal requirement that interested owners be notified before their property was forfeited. The Court held:
the seizure of real property...is not one of those extraordinary instances that justify the postponement of notice and hearing. Unless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture (p. 62).
In another important case64, the Supreme Court addressed a challenge to a civil forfeiture action on the grounds that it violated the excessive fines clause of the Eighth Amendment. It held that "forfeiture generally and statutory in rem forfeiture in particular, historically have been understood, at least in part, as punishment" and that "[w]e therefore conclude that forfeiture under these provisions constitutes 'payment to a sovereign as punishment for some offense,' and, as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause."65
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