Monday, July 14, 2014

The PICWOD: The White Whale of American Racism

In 1851, Herman Melville wrote an epic sea story of an ill-fated whaling ship that would become one of the Great American Classics.  In the story, an obsessed whaling ship captain hunts a ferocious, enigmatic white whale named Moby Dick, and willingly sacrifices the lives of his entire crew in the process. A central part of the story is a Nantucket whale-ship called the Pequod.  Like Melville’s tale, America’s hunt to solve its drug problems have been conducted with similar obsession, on a similarly ill-fated ship. That ship is made up of the Prison Industrial Complex and the War on Drugs, or like the ship in Melville’s tale of a crew doomed by its captain, the ‘PICWOD.’  The only difference between the two is that one was a whaling ship and the other is a slave ship.

 Melville’s description is equally applicable to both ships, however, with each being a “cannibal of a craft” that "tricks herself forth in the chased bones of her enemies."  To destroy all those it preys upon, the U.S. PICWOD uses the harpoons of mandatory sentencing and the lances of asset forfeiture. Both amount to systems of forced labor and financial extraction, social removal and asset acquisition, and while one giveth, the other taketh away. 

Asset Forfeiture

Asset forfeiture is a system designed to protect society by taking things from the accused and giving them to the accuser. It is a system of redistributive justice, in other words, where the accused is guilty until proven otherwise, and it's their burden to prove it ain't so. Columnist Sara Stillman explains it this way: “Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes.”[i] According to U.S. Representative Henry Hyde, it “has allowed police to view all of America as some giant national K-Mart, where prices are not just lower, but non-existent — a sort of law enforcement 'pick-and-don't-pay.'"[ii]  Likewise, Mitch Miller and Lance Selva assert that research findings suggest “asset forfeiture is a dysfunctional policy. Forfeiture programs, while serving to generate income, prompt drug enforcement to serve functions that are inherently contradictory and often at odds with the demands of justice."[iii]

So, what is Asset Forfeiture and where did it come from? 

In 1984, the Federal Crime Bill contained a section that changed the incentives that police have in fighting the war on drugs. Police on state and local levels who cooperate with federal agencies in drug investigations, the bill determined, would share in assets seized. This included boats, houses, money, cars, planes, jewelry, clothes and even gold teeth. This change on the federal level also changed the incentives of the police in many states on the local level. 

Prior to the Federal Crime Bill, many local and state laws allocated funds generated from asset seizure toward education or local funds. Now, police get to keep those funds.[iv] 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."[v]

The Department of Justice, which administers this program federally, then went a step further and said they would adopt a policy where local seizures would be seen as if they were part of a cooperative federal effort.  As a result, all local seizures could now flow to the police, rather than to where state law had designated. And since the DOJ’s change in policy, there has been a dramatic increase in seizures by local and state police agencies.[vi]

The process works like this:  Once the officers seize the drug dealers on a particular corner, they’ll then open up shop as the ‘new drug dealers on the block.’ Then, they seize the assets of anyone trying to purchase drugs from them, and charge that person with a misdemeanor, usually resulting in probation, rehabilitation, and fines and costs. In this way, the courts and the cities make money off the fines and the costs and the police department makes money from the assets seized.[vii]

 Predictably, the level of seizures has exploded since 1984, according to one study. “You don’t even have to be proven guilty. The legal fiction is that the car committed the crime. So, if you buy or sell cocaine from the car, the fiction is that the car committed the crime. You don’t even have to arrest the person and you can just take the car. “[viii]

Two professors in economics who have studied this problem intensively, David Rasmussen and Bruce Benson, admit to having seen films where a person is stopped on the highway, asked if the police can search the car, and the officers find $800. The officers than say, “we’re going to seize this $800 because we believe it was obtained in a drug deal.”[ix] Because it is a civil, not a criminal proceeding, you have to prove it was not obtained through a drug transaction.[x] In a civil proceeding you are guilty until proven innocent. “The real problem is not in police behavior,” Benson argues,” but in how the law was structured.” An officer interviewed admits,” we can seize jewelry, ear rings, gold teeth, clothes, watches, belts, shoes, jackets, anything that’s worth any value we can actually seize.”[xi]

Rasmussen and Benson further illustrate their point with the story of a ranch, in Southern California, that the policed attempted to seize.  “The police decided to raid (this ranch) because they suspected that there were marijuana plants on the property.  So, when they raided it and the owner tried to defend his property using a gun, because allegedly he didn’t know who was raiding his house, he was killed.  A subsequent investigation found no marijuana plants on the property. The investigation also discovered that the police had gotten an assessment on the value of the property before the raid. Apparently, the police felt it was an especially nice piece of property and wanted to seize it.”[xii]

This problem can arise whenever you have a drug enforcement unit that is “self funded” or directly benefits from the assets seized.  A police force that has a “marijuana squad,” for example, will be tasked with paying their own way through asset forfeitures. This creates a very strong incentive to keep your job. So officers go fishing where they know they can catch the most fish. The ponds where the easiest fish are caught with the least amount of struggle tend, of course, to be poor African American neighborhoods. The result is “entire generations… and entire communities are being shaped by this war on drugs.”[xiii]

There has been some reform in this area in an attempt to alleviate the problems that the 1984 Act created. The Civil Asset Forfeiture Reform Act of 2000 (CAFRA), for example, “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.[xiv]

Indeed, despite such reforms, problems still persist with asset seizure programs. One example of such problems harkens back to the days of Martin Luther's protests against the Roman Catholic Church over its sale of Indulgences to pay for its cathedrals. Like in the days of the Reformation, the wealthy can always find a way to buy their way into Heaven or out of Jail.  

Appearance of Impropriety

According to the Center for Problem-Oriented Policing,” 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.  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.[xv]

The Double-Edged Sword undercover researcher observed agencies abandon investigations of suspects they knew were trafficking large amounts of contraband simply because the case was not profitable. Agents routinely targeted low level dealers rather than big traffickers, who are better able to insulate themselves and their assets from reverse sting operations.  The report states: "Efficiency is measured by the amount of money seized rather than impact on drug trafficking."[xvi]

Instead, a "reverse sting operation, where the officer becomes the seller who encourages the suspect to commit a crime, "was the preferred strategy of every agency and department with which the researcher was associated because it allowed agents to gauge potential profit prior to investing a great deal of time and effort." More importantly, the narcotics units studied preferred seizing cash intended for purchase of drugs supplied by the police, rather than confiscating drugs already on the street. When asked why a search warrant would not be served on a suspect known to have resale quantities of contraband, one officer responded:  

"Because that would just give us a bunch of dope and the hassle of having to book him (the suspect). We've got all the dope we need in the property room, just stick to rounding up cases with big money and stay away from warrants."[xvii] 

In an important case, Austin v. United States, 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.[xviii]

Despite such findings and the ruling by SCOTUS, the U.S. PICWOD sales on, and always with an increasing number of  pundits and politicians willing to sacrifice the lives of their constituency to procure an election. Winning public office is what matters most, even if that means sacrificing everyone on board to achieve it. After all, it's not about what works, but what wins an election.


[iii] Mitchell Miller & Lance H. Selva, Drug Enforcement's Double Edged Sword: An Assessment of Asset Forfeiture Programs  (Twelve month empirical examination of the implementation of laws from within the forfeiture program

[iv]  "The Prison Industrial Complex and the War on Drugs" Documentary

[v] Benson, Rasmussen, and Sollars (1995), p. 38. 

[vi] Id.

[vii] Id.

[viii]  Id.

[ix]  Id.

[x]  Id.








[xviii] Austin v. United States, 509 U.S. 602(1993), p. 622

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