Problems for Which Forfeiture is a Remedy

Asset forfeiture is not limited to drug enforcement. It can be used to target a wide range of crime-related phenomena.66 This section briefly reviews asset forfeiture laws that target illegal drug markets and those that target profits from other types of criminal activity. These are some of the most promising areas in which law enforcement officials can pursue asset forfeiture.

Illegal Drug Markets

The 1970 Comprehensive Drug Abuse Prevention and Control Act provided for the forfeiture of property used in connection with controlled substances. Since then various federal statutes have been enacted and extended the reach of asset forfeiture.67 This legislative progression has made forfeiture a viable enforcement option for a wide variety of drug-related offenses.

In terms of specific drug-related problems, forfeiture has been used in response to everything from drug dealing at apartment complexes§ to the operation of clandestine methamphetamine laboratories.§§ Officials must take care, however, to ensure the property targeted for forfeiture is sufficiently valuable in relation to the time and effort required to execute a well-planned bust.

§ See Problem-Specific Guide No. 4, Drug Dealing in Privately Owned Apartment Complexes.

§§ See Problem-Specific Guide No. 16, Clandestine Methamphetamine Labs, 2nd Edition.

Nuisance Properties

Fulton County (Atlanta), Georgia's Neighborhood Fresh Start is an example of law enforcement officials' use of state forfeiture laws to target nuisance properties.68 Prosecutors target houses plagued with drug activity for at least two years. Ideally, the house has had at least five arrests for drug-related activity or two previous search warrant incidents in which drugs were found. They weigh the value of the house against the amount of drugs and contraband seized—mainly due to Eighth Amendment concerns. The chief of police then sends the owner a cease-and-desist letter. The letter is followed by additional surveillance, undercover drug buys, and enforcement. If the activity continues, forfeiture is pursued. In a successful forfeiture, ownership of the house is transferred to the state and the district attorney, and the county moves a police officer into the home. The officer pays a nominal amount of rent and serves as a community resource officer, working only the beat in which the house is located. After the officer lives in the house for a year, the county works with the United Way and other charitable organizations to move a low-income family into the home.

Another class of nuisance properties includes so-called "budget motels."§ In some communities, these properties are responsible for a disproportionate number of calls for service. Because these motels offer cheap accommodations, usually accept cash, do not take many steps to limit certain types of clientele who frequent the premises, and tend to be located in already crime-prone areas, it is no surprise that problems occur. Prostitution, drug dealing, loud parties, and other activities seem to happen frequently. The usual strategies of patrolling the properties and arresting offenders may not be as effective as targeting the assets of owners who turn the proverbial "blind eye" to problems at their motels. Several jurisdictions have used state nuisance laws to forfeit such properties. In many cases, however, the mere threat of forfeiture encourages property owners to take steps toward cleaning up and otherwise improving their properties.

§ See Problem-Specific Guide No. 30, Disorder at Budget Motels.

Street Racing§

In response to a surge in illegal street racing fatalities on city streets, San Diego enacted the nation's first anti-street racing forfeiture ordinance.§§ In general, the law provides for forfeiture of vehicles used in illegal speed contests. Before forfeiture is pursued, however, law enforcement must confirm that the person whose vehicle is targeted has a previous Vehicle Code conviction. Despite this additional restriction, research suggests the ordinance has reduced the street racing problem in San Diego. In particular, an evaluation of the program revealed that the ordinance did more to reduce the street racing problems than other law enforcement activities (such as increased arrests and prosecutions for Vehicle Code violations), negative press coverage of street racing, and sanctioned races at a local stadium on weekends.69

§ See Problem-Specific Guide No. 28, Street Racing.

§§ "...a motor vehicle shall be declared a nuisance and forfeited subject to this division if[i]t is used in violation of California Vehicle Code §§ 23109(a) or (c); andit is being driven by the registered owner of the vehicle, the registered owner is a passenger, the registered owner's immediate family members is driving or riding in the car, or the driver or passenger lives at the same address as the registered owner" (San Diego Municipal Code, Chapter 5, Article 2, Division 52.5301).

Drunk Driving§§§

The federal Transportation Equity Act for the 21st Century, enacted in 199870, requires that state laws contain provisions for seizure and/or forfeiture of the vehicles used by repeat drunk driving offenders. States that fail to do so risk losing federal funding. Although most of the laws provide for temporary impoundment, such as in an impound lot, some provide for permanent forfeiture of the vehicles. No matter the means of depriving repeat drunk drivers of their vehicles, researchers have found that such statutes result in considerable deterrent effects. For example, an Ohio study found that the reduction in DWI offenses for first-time offenders was 80 percent during the impound period, followed by 56 percent after.71 Similar results were reported in California72 and Portland, Oregon, evaluations.73

§§§ See Problem-Specific Guide No. 36, Drunk Driving.

New York City's Vehicle Forfeiture Initiative74 is perhaps the most punitive in the United States. It provides for forfeiture for first-time offenders. Since 1999, the ordinance has been used to forfeit more than 6,500 vehicles, leading some to conclude that it "has saved many lives by encouraging people to refrain from drinking and driving."75 Critics, though, feel the prospect of forfeiture following a first-time offense is excessive: "The policy is an obvious attempt to punish, and it operates by subjecting the automobiles of DWI offenders to forfeiture regardless of their value or the harm that the offender caused."76

Drivers with Revoked Licenses

Forfeiture laws have been expanded to cover vehicles driven by those with revoked licenses. For example, California's Vehicle Code77 provides that "a motor vehicle is subject to forfeiture as a nuisance if it is driven on a highway in this state by a driver with a suspended or revoked license, or by an unlicensed driver, who is a registered owner of the vehicle and has a previous misdemeanor conviction…" under one of several other related Vehicle Code provisions.

Researchers have been hesitant to claim that forfeiture laws such as those in California are effective.78 Why? The explanation one team of researchers offered is that officials in California readily use the state's temporary impoundment provision (for first-time offenders) much more often than they use the forfeiture provision. The researchers found two reasons for this: there is little support of forfeiture from district attorneys and the costs of moving forward with forfeiture actions often exceeded the value of the vehicles targeted.79

Prostitution

Prostitution is a significant problem for many jurisdictions. A wide range of enforcement options are available: intensive enforcement, banning prostitutes from certain areas, imposing curfews, manipulating the physical environment, offering services to prostitutes, and, of course, targeting the "johns" and their property.§ Portland, Oregon, is credited with being among the more aggressive jurisdictions when it comes to targeting the property—particularly the vehicles—of prostitution clients. The vehicles are often seized up front, but many are returned to prostitution clients who submit to deferred prosecution arrangements. The prospect of losing one's mode of transportation has apparently resulted in low recidivism rates.80

§ See Problem-Specific Guide No. 2, Street Prostitution, 2nd Edition.