by Eric Blumenson* & Eva Nilsen**

Abstract: During the 25 years of its existence, the "War on Drugs" has transformed the criminal justice system, to the point where the imperatives of drug law enforcement now drive many of the broader legislative, law enforcement, and corrections policies in counterproductive ways. One significant impetus for this transformation has been the enactment of forfeiture laws which allow law enforcement agencies to keep the lion's share of the drug-related assets they seize. Another has been the federal law enforcement aid program, revised a decade ago to focus on assisting state anti-drug efforts. Collectively these financial incentives have left many law enforcement agencies dependent on drug law enforcement to meet their budgetary requirements, at the expense of alternative goals such as the investigation and prosecution of non-drug crimes, crime prevention strategies, and drug education and treatment. In this article we present a legal and empirical analysis of these laws and their consequences. In so doing, we seek to explain why the drug war continues with such heavy emphasis on law enforcement and incarceration, and show the way to more rational policies.

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Contents:

Introduction

I.     The Drug War Dividend

II.     Conflict of Interest Objections to Self-Financing Police Agencies

    A.     The Due Process Objection

    B.     Policy Objections

III.     The Accountability Objections to Self-Financing Police Agencies

    A.     The Separation of Powers Objection

    B.     Policy Objections

IV.     Remedies and Prospects

Conclusion
 

1/14/97 revision. Copyright 1997 by University of Chicago Law Review, all rights reserved. We presented an earlier version of this article at the June, 1997 meeting of the Law and Society Association, and at faculty workshops at the Boston University School of Law and Suffolk University Law School. We are grateful to all participants, and to the faculties at both institutions who continued to provide thoughtful and valuable advice throughout the research and writing of the article. We also thank Larry Weinberg for research assistance, and Dan Baum, Brenda Grantland, Eric Sterling and Karen Tosh for leading us to much of the obscure but crucial data that appears herein. This research was supported by a grant from the Open Society Institute's Individual Project Fellowships Program.

* Professor, Suffolk University Law School; J.D. Harvard Law School, 1972.

** Assoc. Clinical Prof. of Law, Boston University Law School; J.D. Univ. of Virginia Law School, 1977; LL.M., Georgetown University Law Center, 1980

Asset seizures play an important role in the operation of [multijurisdictional drug] task forces. One 'big bust' can provide a task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance.
                    - Report commissioned by the Department of Justice, Oct., 1993(1)

[W]hat reason can there be, that a free people should be expos'd to all the insult and abuse_and even the fatal consequences which may arise from the execution of a writ of assistance, only to put fortunes into private pockets? . . .[C]an a community be safe with an uncontroul'd power lodg'd in the hands of such officers...?
                           - James Otis, Boston Gazette (January 4, 1762)(2)
 INTRODUCTION

The Nixon Administration officially declared the "War on Drugs" twenty-five years ago.(3) It has continued, at escalating levels, ever since.(4) Today we annually spend $15 billion in federal funds(5) and $33 billion in state and local funds annually to finance this war.(6) Recent FBI crime statistics report that in one year there were almost 1.5 million drug arrests, of which 500,000 were arrests for marijuana possession.(7)  Sixty percent of federal prisoners are incarcerated for drug offenses.(8)

This massive outpouring of money and effort has brought us record numbers of drug seizures, asset forfeitures, and prosecutions.(9) But by more meaningful measures the drug war has been an extraordinary failure. Drugs are more available, at higher purity and lower prices, than they were at the start of the decade.(10) Drug dependence in the inner city(11) and among teenagers(12) has increased substantially. And our drug problem continues to produce massive amounts of crime,(13) $20 billion in annual medical costs,(14) a third of all new HIV infections,(15) prisons filled with non-violent offenders,(16) and the attendant decimation of inner city communities.(17) By all accounts, we have thus far been unable to spend and jail our way out of this problem.

Given these facts, and a general consensus that the war on drugs has been a failure,(18) one might wonder why essentially the same strategies persist year after year, untouched by the wisdom of 25 years of experience. And why do so few public and law enforcement officials speak out against this policy? The answer is that the drug war has achieved a self-perpetuating life of its own because, however irrational it is as public policy, it is fully rational as a political and bureaucratic strategy. Although the political impetus is well recognized -- periodically demonstrated by the public demise of people deemed "soft on drugs," like former Surgeon-General Joycelyn Elders, Judge Harold Baer, and ambassadorial nominee William Weld(19) -- the bureaucratic motive underpinning the drug war is not. This bureaucratic stake is financial, deriving from the lucrative rewards available to police and prosecutorial agencies that make drug law enforcement their highest priority. It operates invisibly, obscured by moral and policy rationales.

Congress conferred these financial benefits to state and local law enforcement directly, through block grants earmarked for drug law enforcement, and indirectly, through forfeiture provisions authorizing law enforcement agencies to seize "drug-related" assets, like a house in which marijuana plants have been grown, and use the proceeds for their budgetary needs. Together these programs have insured continued police enthusiasm for the drug war by offering financial largess unmatched in any other area of law enforcement. But they have also transformed the criminal justice system in two dangerous ways.

First, these programs have distorted governmental policy-making and law enforcement. During the past decade, law enforcement agencies have turned to asset seizures and drug enforcement grants to compensate for budgetary shortfalls, at the expense of other criminal justice goals. We believe the strange shape of the criminal justice system today -- the law enforcement agenda that targets assets rather than crime,(20) the 80% of seizures that are unaccompanied by any criminal prosecution,(21) the plea bargains which favor drug "kingpins" and penalize the "mules" without assets to trade,(22) the "reverse stings" which target drug buyers rather than drug sellers,(23) the overkill in agencies involved in even minor arrests,(24) the massive shift towards federal jurisdiction over local law enforcement(25) -- is largely the unplanned byproduct of this economic incentive structure.

Second, the forfeiture laws in particular are producing self-financing, unaccountable law enforcement agencies divorced from any meaningful legislative oversight. There are by now numerous examples of such semi-independent agencies targeting assets with no regard for the rights, safety, or even lives of the suspects.(26) Such dire results should prompt reform, particularly because a single measure -- mandating that forfeited assets be deposited in the Treasury's general fund rather than retained by the seizing agency -- would cure the forfeiture law of its most corrupting effects. But thus far the forfeiture industry has enjoyed an astonishing immunity from scrutiny by lawmakers and the courts.(27)

In the following pages, we first describe in more detail how the drug war's financial largess has kept its soldiers in business. We then discuss the destructive impact of this economic regime, marshaling evidence to show that the corruption of law enforcement priorities and wholesale miscarriages of justice can be fairly attributed to the operation of these incentives. Finally in Part IV, we explore potential legal and legislative remedies through which law enforcement may regain its bearings.

Our investigation throughout focuses on the economic underpinnings of current drug law enforcement policy. Drug policy also raises an extraordinarily broad range of moral, health, criminological and other concerns, which we do not discuss except insofar as the financial incentives we describe have interfered with attempts to address them. We take no position here on such pivotal issues as legalization or decriminalization, but hope to speak to abolitionists and prohibitionists alike: all sides should be able to agree that, at a minimum, the law enforcement agenda should not be held hostage to the opportunities for financial self-aggrandizement we describe herein.

I. THE DRUG WAR DIVIDEND

Congress has passed a new crime bill every few years. Throughout the 1980's these laws became especially punitive to drug offenders(28) and increasingly profitable to the law enforcement agencies that pursue them. The latter was accomplished primarily by rewriting existing federal aid and forfeiture laws to specifically promote and finance drug law enforcement. We take each in turn.

Federal aid to drug law enforcement: In 1986 Congress revised the federal aid program, renaming it the Edward Byrne Memorial State and Local Law Enforcement Assistance Program after a New York city police officer who was shot during a drug arrest.(29) Byrne grants replaced the federal block grants previously given to the states by the now-defunct Law

Enforcement Assistance Administration.(30) Unlike the earlier program, Byrne grant recipients are required to use these funds to fight the war on drugs.(31) The Byrne Program is now the primary federal program that funds the state and local war on drugs.

Byrne grants have altered the law enforcement landscape in numerous ways -- most notably in the proliferation of multijurisdictional drug task forces (MJDTFs),(32) now collectively the largest funding category in the federal aid program.(33) Between 1988 and 1991, the number of Byrne-funded task forces almost doubled, to 904 task forces covering 83% of the population,(34) with up to 63 multijurisdictional task forces operating within individual states.(35) MJDTF drug arrests fluctuated between 220,000 and 280,000 annually during this period.(36) (See Figs. 1 and 2 on the following pages.(37))

Forfeiture and asset distribution: Modern drug forfeiture law dates from 1970, when Congress passed the Comprehensive Drug Abuse Prevention and Control Act.(38) That Act included a civil forfeiture provision, 21 U.S.C. sec. 881, authorizing the government to seize and forfeit drugs, drug manufacturing and storage equipment, and conveyances used to transport drugs.(39) This provision was intended to forestall the spread of drugs in a way criminal penalties could not: by striking at its economic roots. When criminal prosecution sends a dealer to jail a subordinate will most probably take his place, but seizing the means of production and other capital may shut down the trafficking business for good. In the 27 years since, the list of properties subject to forfeiture has greatly expanded, and the required connection to illegal drug activity has become ever more remote. Congress amended the forfeiture law to include proceeds traceable to drug transactions in 1978,(40) added real property in 1984(41), and in 1986 promulgated a "substitute assets" law providing that property of an equal value may be forfeited in place of forfeitable assets that are no longer available.(42) Today cash, bank accounts, jewelry, cars, boats, airplanes, businesses, houses and land are all fair game. This wholesale expansion of targets has produced enormous confusion as to what kind of nexus to a drug violation will suffice. The law provides for forfeiture of property which "facilitated" a drug crime(43), but courts have developed no clear criteria for what constitutes facilitation.(44) Some police, prosecutors and judges construe this as a license to proceed on the most tenuous of grounds -- for example, seeking to forfeit a bar for failing to stop drug dealing within,(45) or a house in which the owner's son sold drugs,(46) or cash on which some cocaine residue has been found.(47)

For prosecutors, the expanding reach of the forfeiture law is complemented by the great procedural and financial benefits it offers. Procedurally, two tremendous advantages accrue to the government from an ancient legal fiction that dominates all forfeiture cases -- that the property is guilty and on trial.(48) This means, first, that forfeiture can be used even when there is insufficient evidence to make a criminal case against the defendant, or when the defendant is a fugitive. The government need only seize the assets,(49) and it is then up to the owner to challenge the seizure in a costly and unpromising hearing.(50) Second, as a "civil action" against the property itself(51) (as in United States v. One 1974 Cadillac Eldorado Sedan(52)), few of the constitutional safeguards imposed on criminal prosecutions apply.(53) There is no presumption of innocence, no right to an attorney, and no objection to hearsay.(54) The burden of proof is reversed: once the government establishes probable cause to believe the property is subject to forfeiture, the burden shifts to the property owner to prove by a preponderance of the evidence that the property does not belong to the government.(55) There is no constitutional requirement that the owner have intended or been negligent regarding the illegal use of the property,(56) or that the property owner be prosecuted for the underlying criminal activity prior to action against the property. Forfeiture may occur even if the owner is charged and acquitted.(57) (Of course, given the rapid expansion of forfeitable targets to include homes, money and businesses, often the only "taint" on non-contraband property is its owner's alleged wrongdoing.(58) In such cases forfeiture is hardly distinguishable from punishment without trial -- "a deliberate subterfuge"(59) which has been analogized to Soviet era punishment of political offenders under "non-criminal" laws which existed to deprive such people of their criminal procedural rights.(60)) Given these unfavorable odds it is not surprising that roughly 90% of judicial forfeitures are uncontested.(61)

Congress handed police and prosecutors a powerful tool, but their interest in using it accelerated greatly when Congress enacted two additional amendments to the forfeiture law. One amendment, part of the 1984 bill, allowed federal law enforcement agencies to retain and use the proceeds from asset forfeitures, rather than requiring these assets to be deposited in the Treasury's General Fund.(62) The other initiated the federal "equitable sharing" program, which gave the state and local police agencies the lion's share of seized assets even when federal agents were involved in the arrest.(63) The equitable sharing program also includes a "federal adoption" procedure, whereby state police who turn seized assets over to the Justice Department for "federal forfeiture" receive back up to 80% of the value, to be used exclusively for law enforcement purposes.(64) These amendments have had two rather immediate consequences relevant to our inquiry. First, they have given state and local police an enormous economic stake in the federal forfeiture law. At a time when state government budgets are shrinking, equitable sharing offers a new source of income, limited only by the energy police and prosecutors are willing to put into seizing assets.(65) Second, the amendments have produced a major shift towards federal jurisdiction over local law enforcement, because "federalizing" a forfeiture is now a more profitable course for both state and local criminal justice bureaucracies. For many state and local police departments, federal forfeiture allows the retention of a far larger portion of the assets (up to 80%) than they would receive by proceeding under their own state forfeiture laws, which generally require sharing with other, non-law enforcement state agencies.(66) Federal adoption is also profitable for the U.S. Department of Justice, which receives a 20% share of assets with little if any expenditure of federal investigative or law enforcement resources.(67) Indeed, the Department of Justice promotes federalization by providing larger shares to the state or local agency if it "could have forfeited the asset(s) on its own" but agreed to federal adoption instead.(68) The profit and ease of federal adoption has led to widespread circumvention of stricter state forfeiture laws.(69)

The forfeiture laws were designed to combat drug crime by attacking the economic viability of drug trafficking enterprises. It continues to be billed as the weapon of choice in the Drug War. The Director of the Justice Department's forfeiture unit testified to a Congress subcommittee that "[a]sset forfeiture can be to modern law enforcement what air power is to modern warfare."(70) But in fact the aggressive use of forfeiture laws in the last decade has never produced this intended benefit: the $730 million in 1994 federal forfeitures was surely not enough to significantly stifle a $50 billion drug trade, although more than enough to reward police and government officials for their efforts. (71)

What forfeiture does do well is raise money.(72) Police and prosecutors argue that 21 U.S.C. 881 enables them to carry out ordinary law enforcement business and raise money at the same time -- to do well by doing good.(73) Unfortunately, the real impact of forfeiture has not been so benign. In practice forfeiture laws have not simply enhanced the ability of law enforcement to do its job, but rather have changed the nature of the job itself.(74) 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.
 

II.     THE CONFLICT OF INTEREST OBJECTIONS TO SELF-FINANCING
                POLICE AGENCIES
 
The most intuitively obvious problem presented by the forfeiture and equitable sharing laws is the conflict of interest that exists when law enforcement agencies are authorized to keep the assets they seize. It takes no special sophistication to recognize that this incentive constitutes a compelling invitation to police departments to depart from legitimate law enforcement goals in order to maximize funding for their operations. For example, as detailed below some police departments now prefer to arrest drug buyers rather than dealers because buyers are sure to have seizable cash with them. Although profitable to the agencies involved, this agenda badly undermines crime control because arresting buyers rather than sellers does nothing to reduce the supply of drugs in a community. It also results in the less culpable suffering more severe treatment, the antithesis of a just system based on proportional punishment. These destructive priorities are characteristic of the pervasive distortion of law enforcement policy that flows from targeting assets rather than crime. In section II(B) we argue that no rational crime control program will be possible until Congress repeals the conflict of interest license it has issued to police and prosecutors. First, however, we consider whether this conflict rises to a constitutionally objectionable level which might be remedied through litigation.
 

 A.     The Due Process Objection

Impartiality is inseparable from justice.(75) This principle is embedded in the Constitutional due process guarantee, which includes the right to an impartial tribunal in both civil and criminal cases.(76) The Supreme Court has found this right abridged whenever a conflict of interest exists which would "offer a possible temptation to the average man as a judge...not to hold the balance nice, clear and true" between the parties.(77)

Such a conflict obviously exists when the fact-finder has a personal pecuniary interest in the outcome, as when his compensation is contingent on conviction(78) or the issuance of a search warrant.(79) But the Fourteenth Amendment may also disqualify a judge who will receive no direct benefit from the ruling if his department or agency would. Thus in both Tumey v. Ohio(80) and Ward v. Village of Monroeville,(81) the Supreme Court held that the mayor could not constitutionally sit as judge and assess fines to be paid to the village treasury, because his responsibility for town finances gave him a motive to convict and jeopardized his impartiality.(82) The criterion is possible temptation: even a relatively small emolument may suffice,(83) and the temptation need not have actually influenced the decision at all.(84)

These precedents should outlaw such forfeiture statutes as Louisiana's, which authorizes the criminal court to issue a warrant for seizure of the property, order forfeiture, and then allocate forty percent of the proceeds to its own criminal court fund.(85) But the more potentially significant question is whether police and prosecutorial decisions must also satisfy due process standards of impartiality, and on this the constitutional parameters are yet to be fully developed. At this point the Supreme Court has indicated only that (1) the stringent impartiality standard it requires of adjudicatory officials does not apply to prosecuting officials, but (2) neither is the prosecutor free from all conflict of interest restrictions. Some due process limits on law enforcement rewards do exist, but where between these poles they may be found must still be spelled out, and likely will be when litigants focus on the equitable sharing payback law.

What constitutional guidance exists is found primarily in Tumey and a subsequent case, Marshall v. Jerrico.(86) In Tumey, the Court relied on the mayor's pecuniary stake in the fine as reason enough to reverse the conviction, apparently unperturbed by the other shares distributed to the prosecution and police.(87) Without specifically addressing Ohio's statutory scheme, the court allowed that "the Legislature of a state may and often ought to stimulate prosecutions for crime by offering to those who shall initiate and carry on such prosecutions rewards for thus acting in the interest of the state and the people."(88) But the Court did not directly confront the question whether some law enforcement incentives create an unconstitutional conflict of interest until a half century later, in Marshall v. Jerrico.

Jerrico upheld a section of the Fair Labor Standards Act that allowed a division of the Labor Department to retain the civil penalties it assessed for child labor violations, as compensation for the costs of determining violations and assessing penalties.(89) Jerrico, Inc. was fined $l8,500 by the Regional Administrator, appealed and lost before an Administrative Law Judge, and then sued in Federal District Court on grounds that the reimbursement provisions violated its due process rights by encouraging agency personnel to seek and impose excessive fines. The District Court granted the plaintiff summary judgment, holding that this arrangement created an impermissible risk of bias and noting that

The more appropriate procedure is simple and constitutionally sound: pay all civil money penalty funds directly into the Treasury of the United States. To allow only the Department of Labor to deviate from such a clear procedural alternative, to the detriment of alleged violators, would be to disregard the fundamental tenets of our legal system.(90)However, the Supreme Court rejected Jerrico's claims, finding the Tumey rule inapposite because department officials were performing purely prosecutorial functions.(91) Distinguishing the conflict of interest prohibitions governing a factfinder, who must be and appear impartial, from the less stringent limitations on law enforcement officials, the court held that prosecutors "need not be entirely neutral and detached. In an adversary system, they are necessarily permitted to be zealous in their enforcement of the law."(92) But this was far from a blank check for prosecutorial self-aggrandizement, because the Court simultaneously emphasized that prosecutors too are bound by at least some due process limitations on conflicts of interest:

We do not suggest...that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors. Prosecutors are also public officials; they too must serve the public interest. In appropriate circumstances the Court has made clear that traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which the enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law. Moreover, the decision to enforce -- or not to enforce -- may itself result in significant burdens on a defendant or a statutory beneficiary, even if he is ultimately vindicated in an adjudication. A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.(93)In Jerrico the Court found that the constitutional barrier had not been crossed because the statute conferred no personal gain on the Regional Administrator, and the institutional benefit to the prosecuting department (the Employment Standards Administration) was too small to be a factor in decisions regarding whom to prosecute and how much to fine.(94) Analyzing the relevant three year period, the Court noted that the ESA was not at all financially affected by the relatively minimal penalties collected; the national office of the ESA allocated the penalties among the regional offices and other departments, and thus a regional office could not expect that any penalties it assessed would be returned to it; and finally, since any penalties distributed to a regional office were determined in proportion to office expenses rather than the amount collected, a regional office would obtain no benefit by assessing an unjustifiably large penalty.(95) Given this undisputed record, the claim that Sec. 16(e) would bias the decisions of the regional administrator was "too remote and insubstantial to violate the constitutional constraints" on prosecutors.(96) There is no implication here that the Justices would have been equally tolerant of a scheme that, for example, paid over traffic fines to the police officer who issues the citation. Rather, the Court examined three relevant factors -- the degree of institutional financial dependence on the prosecutorial decision, the official's personal stake, and the penalty distribution formula -- and none of them suggested any temptation towards impropriety.

Before applying the Jerrico criteria to the forfeiture case, we should note that the Court's sharp distinction between judicial and prosecutorial standards is controversial, and belies the overwhelmingly dispositive role of discretionary prosecutorial decisions in a system where few cases ever go to trial: the justice of the system depends primarily on the fairness of the law enforcement branch. The Court would have done better to find a due process requirement that law enforcement agencies be untarnished by any actual or perceived temptation towards self-aggrandizement.(97) But instead of applying a bright line rule, Supreme Court doctrine after Tumey and Jerrico construes the constitutional limitation as a matter of degree, in the sense that some minimal rewards might act to "stimulate" law enforcement officials to do their job without distorting or biasing them towards unjust prosecutions or excessive penalties.(98) Whether a prosecutorial payback provision violates the Fourteenth Amendment thus necessarily requires a factual inquiry into the effect of these particular rewards on the agency. To assess the constitutionality of equitable sharing, we must take a much closer look at its operation in practice. What is remarkable about the three empirical factors that led Jerrico to uphold the child labor prosecution is that in the forfeiture case, every one cuts the other way, and to an extreme degree. One could hardly design an incentive system better calculated to bias law enforcement decisions than the present forfeiture laws. Taking the Jerrico factors in order.

Financial dependence: The ESA division of the Labor Department obtained no financial benefit from the penalties it assessed: the penalties collected totaled less than 1% of the ESA's budget, and because more than this amount was returned to the Treasury, they had not increased the ESA's funding at all. By contrast, numerous law enforcement agencies now rely on forfeitures to fund a significant part of their operations. The gross amounts are prodigious: By 1987 the Drug Enforcement Administration was effectively paying for itself, with seizures exceeding its annual budget.(99) Between 1985 and 1991, the Justice Department collected more than 1.5 billion in illegal assets;(100) in the next five years, the Justice Department almost doubled this intake, depositing $2.7 billion in its Asset Forfeiture Fund.(101) It appears that this forfeiture income is sometimes required to operate the Department, which has regularly exhorted its attorneys to make "every effort" to increase "forfeiture production" so as to avoid budget shortfalls.(102) Like concerns motivate state and local officials. A 1991 Justice Department memorandum observed that state and local law enforcement agencies were becoming increasingly dependent upon equitable sharing of forfeiture proceeds.(103) (As of 1994 the Department had transferred almost $1.4 billion in forfeited assets to these agencies.(104)) Similarly, a study of multijurisdictional drug task forces participating in the Byrne grant program found that these task forces had seized over $1 billion in assets between 1988 and 1992,(105) and that many of their commanders " expect to have to rely increasingly on asset forfeitures for future resources."(106)

Personal interest: The degree of the prosecutor's "personal interest, financial or otherwise" also mattered to the court. Although the Justices found that the ESA Regional Administrators had no personal stake in the penalties they assessed, they did note that constitutional violations might have arisen had the arrangement injected a personal stake into the prosecutor's decisions. The revised forfeiture laws have now produced such a case: when a police department relies on a steady stream of forfeiture income to pay for its operations, as many now do, an officer's choice of who and what to target may mean the difference between a paycheck and a pink slip.(107) Anyone who doubts whether job maintenance qualifies as a personal stake should read the sociologist Northcote Parkinson's witty study on the subject.(108) There are carrots as well, including more generous working conditions or the use of seized assets from baseball gloves to automobiles.(109) Some police departments base promotions in part on the officer's success in asset seizures;(110) at least one city ordinance actually gives individual officers a personal share of the forfeiture take.(111)

The funding formula: Finally, in Jerrico the court stressed that the statutory scheme reimbursed regional offices according to their expenses rather than their collections, providing no reason for regional offices to seek unreasonably large penalties. No such restraint exists in the asset retention statutes; the larger the seizure, the higher the reward for each participating office.

*  *  *

The three factors we have just discussed were dispositive in Jerrico because they were strong indicia that prosecutors were unaffected by the negligible financial stake the ESA might have in their penalty assessments. In the forfeiture case the same factors point in the opposite direction, strongly tempting a law enforcement agency to tailor its decisions to enhance institutional funding. Have law enforcement decisions actually been influenced and corrupted by this temptation? To answer this question, we need not merely extrapolate from the Jerrico indicia, or invoke economic models,(112) or rely on conjecture at all. We can instead directly examine the recent history of law enforcement activity. This record shows that the forfeiture reward system has done far more than stimulate zealous enforcement. Rather, it has grossly distorted police and prosecutorial priorities, infecting virtually every phase of the criminal justice system. The consequence is an often counterproductive, sometimes pernicious law enforcement agenda.

At this point we focus only on those corrupted decisions that might be found to abridge the constitutional due process guarantee. We shall assume that this requires proof not only that the prosecution is contaminated by a significant conflict of interest, but also that the defendant or claimant suffered some legally cognizable prejudice as a result -- for example, that she might not have been targeted, or treated as harshly, in the absence of the agencys financial interest.(113)

Consider first police investigations. The shift in law enforcement priorities, from crime control to funding raids, is perhaps best revealed by the advent of the "reverse sting," a now common police tactic that was rarely used before the law began channeling forfeited assets to those who seized them.(114) The reverse sting is an apparently lawful version of police drug dealing in which police pose as dealers and sell drugs to an unwitting buyer. The chief attraction of the reverse sting is that it allows police to seize a buyer's cash rather than a seller's drugs (which have no legal value to the seizing agency).(115) According to one participant in some reverse stings, "This strategy was preferred by every agency and department with which I was associated because it allowed agents to gauge potential profit before investing a great deal of time and effort. [Reverse stings] occurred so regularly that the term reverse became synonymous with the word deal."(116) Whether the suspects were engaged in major or trivial drug activity, and whether the strategy actually placed more drugs on the street, were of little if any import. Even if a sting targeted a drug dealer, the police might defer the operation until the dealer sold some of the drugs to other buyers in order to make the seizure incident to arrest more profitable.(117) Or law enforcement agencies might select their targets according to the funding they could provide rather than the threat they posed to the community. A Justice Department report proposed precisely this approach to multijurisdictional task force commanders, suggesting that as asset seizures become more important "it will be useful for task force members to know the major sources of these assets and whether it is more efficient to target major dealers or numerous smaller ones."(118)

A similar motivation may underlie the otherwise baffling policy adopted in 1986 by both the New York City and Washington, D. C. police. Invoking 21 USC 881(a)(4), the policy directed police to seize the cash and cars of persons coming into the city to buy drugs.(119) The consequence of this strategy was that the drugs which would have been purchased continued to circulate freely. Patrick Murphy, formerly the Police Commissioner of New York City, explained the origin of this policy to Congress. Police, he said, have

a financial incentive to impose roadblocks on the southbound lanes of I-95, which carry the cash to make drug buys, rather than the northbound lanes, which carry the drugs. After all, seized cash will end up forfeited to the police dept., while seized drugs can only be destroyed.(120)For prosecutors too, funding exigencies have pre-empted other considerations. One Department of Justice manual governing racketeering prosecutions, for example, suggests that prosecution may be contingent on the presence of forfeitable assets, rather than forfeiture being an incident of prosecution.(121) Consequently, prosecutors have become expert at learning about the presence of assets in cases under investigation, assessing their value and condition, and checking for liens on property. One issue that the Supreme Court will eventually have to decide is whether this is the kind of prosecutorial discretion which, in Jerrico's formulation, must not be immune from judicial scrutiny because "the enforcement decisions of an administrator were motivated by improper factors."(122)

Consider also forfeiture's corrupting influence on the disposition of criminal cases. Ironically, as the Drug War was escalating during the 1980's and '90's, major efforts were underway to remove corrupt influences and unjust disparities from criminal sentences. The federal government and many states sought to accomplish this by rewriting their sentencing laws to specify the sentence that fit each crime and the criminal history of each offender.(123) But these sentencing reform laws have been largely undone in the drug area. (124) Forfeiture laws promote unfair, disparate sentences by providing an avenue for affluent drug "kingpins" to buy their freedom. This is one reason why state and federal prisons now confine large numbers of men and women who had relatively minor roles in drug distribution networks, but few of their bosses.(125)

Investigations in several jurisdictions have documented that criminal defendants with the most assets to turn over to the authorities routinely serve shorter prison sentences and sometimes no prison sentence at all. In New Jersey, a defendant facing a "drug kingpin", 25 years-to-life indictment obtained a dismissal of that charge, and parole eligibility in five years on a lesser conviction, by agreeing to forfeit over one million dollars in assets.(126) In Massachusetts, a recent investigation by journalists found that on average "payment of $50,000 in drug profits won a 6.3 year reduction in a sentence for dealers," while agreements to forfeit $10,000 or more bought elimination or reduction of trafficking charges in almost 3/4 of such cases.(127) The Massachusetts prosecutors who were investigated have a compelling financial reason to recalibrate the scales of justice in this way because 12% their budgets are financed through forfeiture income.(128) And the Supreme Court has greatly facilitated this practice by finding no right to a judicial inquiry whether property relinquished pursuant to a guilty plea was properly subject to forfeiture.(129) As Justice Stevens noted in dissent, "it is not unthinkable that a wealthy defendant might bargain for a light sentence by voluntarily 'forfeiting' property to which the Government had no statutory entitlement."(130) But these distorted, disparate plea offers remain untested under the due process right to an impartial prosecutor, and the most hopeful challenge may come from the asset-poor defendants who suffer the most in plea bargaining from the governments conflict of interest.(131)

To illustrate how much the defendant may have at stake in uncorrupted law enforcement, we present a final example: the enlightening and appalling case of Donald Scott. Scott was 61 year old wealthy recluse who owned a 200 acre ranch in Malibu, California adjacent to a large recreational area maintained by the National Park Service. In 1992 the Los Angeles County Sheriff's Department received an informant's report that Scott was growing several thousand marijuana plants on his land. It assembled a team -- including agents from the Los Angeles Police Department, the Drug Enforcement Administration, the U.S. Forest Service, the California Air National Guard, the U.S. Border Patrol, and the California Bureau of Narcotic Enforcement -- to investigate the tip, largely through the use of air and ground surveillance missions. Despite several unsuccessful efforts to corroborate the informant's claim,(132) and despite advice that Scott posed little threat of violence,(133) the LASD dispatched a multi-jurisdictional team of 30 law enforcement officers to conduct a military-style raid. On October 2, 1992 at 8:30 a.m., the officers descended upon the Scott ranch to execute their search warrant. After knocking and announcing their presence, they kicked in the door and rushed through the house. There they saw Scott, armed with a gun in response to his wife's screams. With Scott's wife watching in horror, they shot and killed him. There were no marijuana plants anywhere on the land, and no drugs or paraphernalia in the house.

Following Scott's death, the Ventura County District Attorney's Office conducted a five month investigation of the raid. The 70 page report found that there was no credible evidence of present or past marijuana cultivation on Donald Scott's property.(134) As to the search warrant, the report found that much of the information supporting the warrant was false, that exculpatory surveillance evidence was withheld from the judge, and that the Los Angeles County Sheriff's Department knowingly sought the warrant on legally insufficient information.(135) The search warrant "[b]ecame Donald Scott's death warrant," the report concluded, and Scott was unjustifiably, needlessly killed.(136)

The targeting of Donald Scott, and the massive multijurisdictional police presence, cannot be explained as any kind of crime control strategy. Rather, as the Ventura County District Attorney's report concluded, one purpose of this operation was to garner the proceeds expected from forfeiture of the $5 million ranch. Among the documents distributed to some of the officers at the pre-raid briefing were a property appraisal of Scott's ranch, a parcel map of the ranch with a reference to the sales price of a near-by property, and the statement that if 14 marijuana plants were found then the ranch would be seized.(137) *

Egregious cases like Donald Scott's underscore the difference between the statutory provision upheld in Jerrico and laws which encourage law enforcement agencies to finance themselves through aggressive, potentially violent police actions -- a difference that threatens liberty and even life in ways that no one can mistake for "due process of law." Moreover, for a court to find otherwise would betray one of the central concerns that led to the founding of our constitutional order. Financial incentives promoting police lawlessness and selective enforcement, in the form of the customs writs of assistance, were high on the list of grievances that triggered the American revolution.(138) Writs of assistance authorized customs officers to seize suspected contraband, and retain a share of the proceeds, often a third, for themselves and their informants.(139) From the viewpoint of the Crown, this incentive could help insure that goods landing in American ports were taxed or, if prohibited, confiscated. But for the colonists, it was an outrage that brought with it corrupt officials,(140) lawless seizures,(141) selective enforcement,(142) fabricated evidence,(143) extortionate agreements from subjects who had no effective legal recourse,(144) "and even the fatal consequences which may arise from the execution of a writ of assistance, only to put fortunes into private pockets."(145) From these complaints "the child Independence was born."(146) The same fundamental grievances are now lodged against our present forfeiture laws. What court can read such formative concerns out of the Constitution?

 B.     Policy Objections

There are many issues in the criminal justice field which set the constitutional rights of suspects against the security of the general population. The Drug War's economic incentive structure is unusual in that it threatens the due process of drug suspects and hinders effective law enforcement at the same time. When police target drug buyers rather than sellers in order to advance their own financial interest, for example, they brazenly ignore the public interest in both just, proportional punishment and drug reduction. Bad policy may not be unconstitutional, but it does demand reform -- in this case, obvious reforms which could be easily legislated if there were the political will to do so.(147)

Imposing this conflict of interest on law enforcement endangers the public welfare in four critical areas. First, encouraging police to target assets undermines drug law enforcement strategies. Nominally forfeiture provides a way to remove contraband from circulation. But when fundraising prospects lead police to defer arrests until after drug sales,(148) when police prefer to target the least culpable offenders,(149) when prosecutors give leniency to those dealers with the largest assets, and when 80% of the people whose assets are seized are never charged,(150) we should suspect that the forfeiture payback provision is having the opposite effect. Virtually all drug enforcement decisions are subject to this economic temptation; heroin distribution may demand more enforcement, for example, but perhaps targeting cocaine dealers would be more profitable.(151) One commentator concluded that "forfeiture is shaping the core goals and policies of the [drug war]. . . .Asset forfeitures have become a legitimate alternative policy goal for law enforcement, . . . an end in themselves."(152)

The forfeiture incentive exerts all the more influence because no clear drug control priorities have ever been formulated which might act as a restraint on single-minded fundraising. Because questioning any drug war campaign can be political suicide, its priorities have been rarely subject to rational public debate. Shrill political demands that everything must be accomplished immediately reduce to a directionless program in which nothing takes precedence. The euphemistic label attached to this abdication is a "zero tolerance policy," formally adopted by National Drug Policy Board on March 21, 1988.(153) This "policy" has authorized virtually any law enforcement activity that has even the most tenuous connection to drug violations -- effectively a license to engage in unlimited asset seizures. Pursuant to it, the Customs Service and the Coast Guard have seized assets regardless of whether the owner was innocent, or whether he possessed merely a de minimis quantity of drugs; in May, 1988, for example, the Coast Guard seized a yacht valued at $2.5 million because it contained 1/10 of an ounce of marijuana.(154) Similarly, the Reagan "Just Say No" campaign equated casual, recreational marijuana use with the most desperate forms of drug addiction, making any and all law enforcement choices acceptable.(155)

Second, by linking police budgets to drug law enforcement, both forfeiture laws and Byrne grants induce police and prosecutors to neglect other, often more pressing crime problems.(156) From the examples in the preceding section, it should be evident that law enforcement officials now make business judgments which can only compete with, if not wholly supplant, their broader law enforcement goals. The Department of Justice has periodically made this practice official policy, as in 1989 when all U.S. Attorneys were directed to divert resources to forfeiture efforts if necessary to meet their commitment "to increase forfeiture production":

If inadequate forfeiture resources are available to achieve the above goals, [U.S. Attorneys] will be expected to divert personnel from other activities or to seek assistance from other U.S. Attorney's offices, the Criminal Division, and the Executive Office for United States Attorneys."(157)The asset retention law compounds already existing incentives that promote an inordinate emphasis on drug enforcement. For example, personal rewards often accrue to those police officers who most zealously enforce the drug laws. Because drug detail generally reaps large numbers of nighttime arrests and daytime court appearances for the arresting officer,(158) it is an avenue to both overtime pay (sometimes equaling base salary) and promotions (which are often linked to arrest rates).(159) This both channels officers into drug enforcement and pits their personal interest against non-criminal, community-based alternatives to arrest.

Police forces desperately pursuing drug offenders are, of course, just the beginning of a spiral that is spinning out of control. To complete the picture, one must also examine the non-drug crimes that go unprevented or uninvestigated, the court hours diverted from other kinds of cases,(160) the rejection of non-criminal approaches to dealing with the drug problem, and much more. Unfortunately, Congress has diligently avoided examining these issues.

This brings us to a third casualty of the funding methods we have described: the subversion of any serious legislative debate on our drug policy, and particularly on how heavily it should rely on law enforcement rather than alternative non-criminal strategies. There is, for example, an enormous body of research to show that treatment is several times more effective in reducing drug consumption than interdiction and other policing.(161) Yet from the beginning national drug policy has overwhelmingly emphasized law enforcement rather than treatment, education, or other non-criminal approaches. Out of approximately $15 billion in federal Drug War funds, approximately 2/3 is dedicated to law enforcement and interdiction.(162)

Meanwhile the slim budgetary allotment for the Substance Abuse and Mental Health Administration's prevention and treatment programs was cut by about 60% in 1996.(163) The forfeiture incentive --- along with Byrne funding, the additional monetary and career rewards that flow to police officers who make drug arrests,(164) and a mushrooming prison-dependent economic sector(165) -- assures the existence of a powerful lobby to maintain this imbalance.(166) As we demonstrate in Part IV, this lobby has been able to soundly defeat the few Congressional efforts to divert some drug law enforcement funding to other uses.

Our law enforcement emphasis has not diminished the drug problem, but it has produced a prison problem of staggering proportions. With a five fold increase in the number of incarcerated drug offenders over the last decade,(167) the Drug War has made the United States the second most incarcerated population in the industrialized world, after Russia.(168) Over ten years we have doubled our prison population to 1.6 million inmates, requiring the addition of 1600 new prison beds each week.(169) None of this has affected the spread of serious addiction among school dropouts, gang members, and the poor, except by siphoning away funds that might be used for drug education, treatment, or the amelioration of the hardships that make drug abuse look attractive.

Fourth and finally, the economic rewards offered by both the forfeiture and Byrne grant laws are so large that some police are tempted to pursue them illegally when necessary.(170) A recent federal civil rights case brought against several task force officers strikingly illustrates the corrosive operation of these incentives. In United State v. Reese,(171) the Court described a task force criminally deformed by its dependence on federal drug money. Existing as a separate unit within the Oakland Housing Authority, the task force operated, in the words of one member, "more or less like a wolfpack", driving up in police vehicles and taking "anything and everything we saw on the street corner."(172) According to the Court, the commander, Daniel Broussard,

regularly exhorted Task Force officers to keep their arrest numbers up. All the officers were aware that the federal grant that funded their unit, and on which their jobs depended, was good for only eighteen to twenty-four months. Broussard warned that they would need statistics to show that the federal money was well spent and thus to secure another grant. On more than one occasion, he sent the Task Force out to begin a shift with comments like, "Lets go out and kick ass," and "[E]verybody goes to jail tonight for everything, all right?"(173)Oaklands Drug Task Force is far from unique. Reporters and investigators have documented numerous other instances of police departments engaging in illegal searches, threats, and other lawless conduct in search of forfeitable cash. After viewing videotapes of approximately 1,000 highway stops, two Florida reporters found that police had used traffic violations as a pretext to confiscate "tens of thousands of dollars from motorists against whom there [was] no evidence of wrongdoing," commonly taking the money without filing any criminal charges.(174) Other police departments have systematically seized any cash that a suspect cannot show is unrelated to a drug transaction.(175) A Los Angeles Sheriffs Department employee reported that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures.(176) Louisiana police engaged in massive pretextual stops, with the seized money diverted to police department ski trips and other unauthorized uses.(177) Many of these police undertook such lawlessness not to provide illicit personal income, but to further their agencys financial well being. As we note below, the Drug War has also fostered the more traditional kinds of police corruption and private graft that particularly thrive in the surreptitious, informant-laden world of anti-drug operations.(178)
 

III.     THE ACCOUNTABILITY OBJECTIONS TO SELF-FINANCING POLICE AGENCIES
 
 A.     The Separation of Powers Objection
 
We turn now to a second fundamental problem with self-financing law enforcement agencies: unaccountability. Agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. As a Justice Department report notes, "one 'big bust' can provide a task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance."(179)

When this happens, the predictable consequence is a degree of police secrecy and independence that brings with it some of the risks civil libertarians associate with the term "police state." We do not mean to imply that police now exercise unlimited power in the United States, but we do believe that the escalating presence of this new kind of police agency will prove increasingly dangerous to our nation's liberty if unchecked. The longer we ignore this problem, the more entrenched and intractable it will become.

As with the conflict of interest problem in the preceding section, police unaccountability invokes both constitutional and policy objections. We explore the latter concerns in Part II(B). In this section we argue that independent, self-financing law enforcement agencies violate both the appropriations clause and the separation of powers framework that the clause was designed to support, as follows.

Under Art. I, sec. 9, cl. 7, Congress is vested with exclusive appropriations power.(180) Along with supporting statutes -- including the Miscellaneous Receipts Act (which requires all funds collected to be deposited in the public treasury, subject to exceptions(181)), the Anti-Deficiency Act (which bars a government employee from authorizing or incurring an obligation without a Congressional appropriation(182)), and the prohibition against augmentation (which bars an agency from exceeding the amount appropriated with third party funding(183)) -- the Appropriations Clause assures that government income cannot be spent until a specific Congressional appropriation releases it.(184)

By contrast, under 28 U.S.C. 881(e)(2)(B) money seized by a federal agency is deposited in the Department of Justice's Asset Forfeiture Fund, where it is then available to the Department and other federal agencies for drug law enforcement and, in some cases, funding prisons.(185) This arrangement bypasses the Treasury, leaving the Justice Department free to determine the contours of its own budget. The Justice Department, the DEA and other federal law enforcement agencies have essentially been given the freedom to fund themselves in whatever amount their agents can legally seize. The constitutional questions are whether this kind of blank check comports with section 9 and, more broadly, the constitutional scheme of separate powers which serve to check and balance each other.

The complication is that this blank check was issued by Congress, and in theory it can terminate the privilege at any time. This generates two alternative possible interpretations: sec. 881 might be deemed either an exercise of the Congressional appropriations power,(186) or it might be considered an unconstitutional transfer of this power to the executive branch. Obviously executive agencies must exercise legislatively delegated power, but just as obviously there must be limits of degree or the organizing principle of the constitutional structure, the separation of powers, could be lawfully destroyed.(187)

In theory the non-delegation doctrine is designed to discern this limit. The doctrine recognizes that legislative delegations are sometimes necessary because administrative agencies are better able to provide expertise, or the expeditious and flexible responses which may be required to adequately regulate an area. (188) But to insure that legislative power remains with the Congress, and that lawmaking does not devolve into the promulgation of ad hoc rules by non-elected administrators, the doctrine requires that agency action be tethered to the legislature's defined ends.(189) To accomplish this, a statute delegating Congressional power must provide "intelligible principles" sufficient to channel agency discretion and provide a basis for judicial review of the exercise of that discretion.(190) In the 1930's, the Supreme Court struck down a series of legislative delegations unaccompanied by such guiding standards.(191) But although the Supreme Court subsequently invoked the doctrine, and sometimes construed statutory delegations narrowly in order to comply with its requirements,(192) the Court did not again find a delegation of legislative power unconstitutional for almost half a century. Scholars came to regard the idea of an unconstitutional legislative delegation as something of an oxymoron, but in the 1980's and 90's the non-delegation doctrine has been showing new signs of life. In the "Benzene case,"(193) an occupational health and safety standard promulgated by the Secretary of Labor was struck down as exceeding the executives lawfully delegated authority.(194) Two years later in INS v. Chadha the Court overturned a delegation of legislative power to one House, finding it offended both the presentment clause and the bicameral structure of Article I.(195) In 1995, the Eighth Circuit applied the non-delegation doctrine to overturn a statute authorizing the Secretary of Interior to acquire land in trust for Indian tribes; it found that the standardless delegation created "an agency fiefdom whose boundaries were never established by Congress...It is hard to imagine a program more at odds with separation of powers principles."(196) This past April the U.S. District Court for the District of Columbia declared the Line Item Veto Act unconstitutional because Congress had ceded non-delegable, basic legislative functions to the President.(197) A divided Supreme Court reversed this decision three months later on grounds that the President had yet to exercise his first line-item veto, and therefore the plaintiffs had not yet suffered any injury providing standing to sue.(198) The Court's ultimate decision on the merits, briefly delayed but inevitable, will provide at least some clues to its present thinking on the non-delegation issue. At this point it appears clear that the pendulum is gaining momentum in this new direction as Justices Rehnquist and Scalia,(199) along with numerous constitutional scholars,(200) argue for a more vigorous application of the non-delegation doctrine.

If some delegations of legislative power are constitutionally suspect, giving law enforcement agencies the opportunity to set the size of their own budgets through police seizures must be one of them. By issuing this blank check Congress has alienated the vital legislative function assigned to it by the Appropriations Clause: specifying the size and nature of the government's activities. To see this, one must recognize that an appropriation is not simply a procedural mechanism by which funds are released, but a substantive determination by the legislature of the relative worth of the program it funds. This understanding of the appropriations process, as a budgetary mechanism by which Congress shapes the activities of the federal government, has prevailed from the Constitution's inception to the present day.(201) To constitutional scholar Kate Stith, one consequence is that the appropriations function imposes

an obligation on Congress itself. Congress has not only the power but also the duty to exercise legislative control over federal expenditures...In determining whether a grant of spending authority is a constitutional appropriation...[w]hat matters is whether Congress in fact determines how much funding for a government activity is "appropriate."(202)This is precisely what Congress did not do when it enabled law enforcement agencies to fund themselves with whatever assets they might lawfully seize. As former Attorney-General Richard Thornburgh has noted, "its 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."(203) In other words, law enforcement activities and resources are now unconstrained by any legislative determination of an appropriate budgetary level. This wholly thwarts sec. 9's constitutional function as defined by the Supreme Court, which is "to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents..."(204)

Our claim here is not that the Appropriations Clause requires Congress to specify a definite budgetary figure for executive agencies, or do so yearly. As Stith argues, Congress may permanently authorize the expenditure of an indefinite sum to be fixed by later events(205) (such as the sum necessary to finance the national debt,(206) entitlement obligations,(207) or contract obligations incurred by an agency pursuant to Congressional authorization(208)) so long as it reflects a decision by Congress that the formula will result in the appropriate degree of funding and, therefore, agency activity.(209) This could be the case even if Congress has authorized an agency to collect fees and utilize them for its operating budget, as when it decides a government service should be provided in proportion to the market's demand for it. (Consumer-generated revenue retained by the Postal Service, Amtrack, the Park Service and the SEC are examples).(210) There is a constitutional chasm, however, between a Congressional appropriation deliberately designed to size an agency according to market demand, and a law effectively allowing a law enforcement agency to decide for itself what its size and resources will be. In the latter case, Congress has shed its obligation to set the purposes and amounts of government expenditures, transferring this legislative policy decision to self-interested administrators in the executive branch.(211) That the executive branch has used the asset retention law to supplement its federal law enforcement budget by billions of dollars,(212) in an area substantially immune to Congressional oversight except through exercise of the appropriations power,(213) underscores the importance of returning this power to the Congress.

Measured against the kinds of Congressional delegations of power which have been upheld, the asset retention scheme is extreme, and outside any constitutional rationale. None of the reasons that courts have found to justify a delegation(214) pertain to a law allowing the Justice Department to write its own budget, which is no different in any of these respects than the other appropriations Congress enacts without undue difficulty. And even were a delegation of the appropriations function warranted, here it is unaccompanied by any "intelligible principles" to guide agency discretion, or any other means of