Document Type
Article
Publication Date
Winter 1999
ISSN
0887-7785
Publisher
American Bar Association
Language
en-US
Abstract
In 1984, the civil asset forfeiture law was amended to allow the U.S. Department of Justice (DOJ) and state law enforcement agencies to retain many of the "drug-related assets" they seize for their own law enforcement purposes. Under this amendment, some local law enforcement agencies have managed to double or triple their appropriated budgets by targeting such assets. As former Attorney General Richard Thornburgh has noted, "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." The American people, however, are paying a price for this largess: economic temptation now hovers over all law enforcement decisions, and law enforcement activity is becoming increasingly skewed in counterproductive ways. Since 1984, police and prosecutorial agencies have routinely operated under a conflict between their economic self-interest and traditional law enforcement objectives. Both the crime prevention and due process goals of our criminal justice system are compromised when salaries, continued tenure, equipment, modernization, and budget depend on how much money can be generated by forfeitures.
Police and prosecutorial conflicts of interest, when substantial, violate the Due Process Clause-and such conflicts are substantial in a great many cases. The conflict of interest objection is appropriate, not only in civil forfeiture cases, but in any case in which the government's actions may have been influenced by the potential to fund itself through forfeiture. For example, in a criminal drug prosecution, counsel should consider a motion to dismiss when a wealthy defendant is singled out for prosecution because he or she has forfeitable assets. A motion to dismiss may be equally sound on behalf of a defendant who is not offered as lenient a plea bargain because he or she is poor. Both are equally culpable codefendants who are able to trade their assets for time. In both situations, the defendant has suffered actual prejudice because of the government's conflict of interest. Such conflict may also provide the basis for a motion to disqualify a prosecutor whose salary is in part dependent on forfeitures-as in the eastern region of Massachusetts, where a recent investigation disclosed that 12 percent of the district attorneys' budgets were financed through forfeitures they obtained.
Forfeiture cases pose many problems, but this article focuses on previously unasserted challenges to forfeiture's economic incentives. It may be that courts will prove more amenable to a well-argued constitutional attack on this aspect of the forfeiture laws than they have been to attacks on the forfeiture laws generally or on the conduct of well intentioned law enforcement officers in particular cases.
Recommended Citation
Eric D. Blumenson & Eva S. Nilsen,
Contesting Government's Financial Interest in Drug Cases
,
in
13
Criminal Justice
4
(1999).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3877
Included in
Civil Procedure Commons, Criminal Procedure Commons, Law Enforcement and Corrections Commons, Legal Ethics and Professional Responsibility Commons
