Authors: Michelle Alexander
The New Jim Crow (15 page)
Not surprisingly, this drug forfeiture regime proved highly lucrative for law enforcement, offering more than enough incentive to wage the War on Drugs. According to a report commissioned by the Department of Justice, between 1988 and 1992 alone, Byrne-funded drug task forces seized over $1 billion in assets.
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Remarkably, this figure does not include drug task forces funded by the DEA or other federal agencies.
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Remarkably, this figure does not include drug task forces funded by the DEA or other federal agencies.
The actual operation of drug forfeiture laws seriously undermines the usual rhetoric offered in support of the War on Drugs, namely that it is the big “kingpins” that are the target of the war. Drug-war forfeiture laws are frequently used to allow those with assets to buy their freedom, while drug users and small-time dealers with few assets to trade are subjected to lengthy prison terms. In Massachusetts, for example, an investigation by journalists found that on average a “payment of $50,000 in drug profits won a 6.3 year reduction in a sentence for dealers,” while agreements of $10,000 or more bought elimination or reduction of trafficking charges in almost three-fourths of such cases.
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Federal drug forfeiture laws are one reason, Blumenson and Nielsen note, “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.”
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The Shakedown48
Federal drug forfeiture laws are one reason, Blumenson and Nielsen note, “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.”
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Quite predictably, the enormous economic rewards created by both the drug-war forfeiture and Byrne-grant laws has created an environment in which a very fine line exists between the lawful and the unlawful taking of other people’s money and property—a line so thin that some officers disregard the formalities of search warrants, probable cause, and reasonable suspicion altogether. In
United States v. Reese
, for example, the Ninth Circuit Court of Appeals described a drug task force completely corrupted by its dependence on federal drug money. Operating as a separate unit within the Oakland Housing Authority, the task force behaved, in the words of one officer, “more or less like a wolfpack,” driving up in police vehicles and taking “anything and everything we saw on the street corner.”
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The officers were under tremendous pressure from their commander to keep their arrest numbers up, and all of the officers were aware that their jobs depended on the renewal of a federal grant. The task force commander emphasized that they would need statistics to show that the grant money was well spent and sent the task force out to begin a shift with comments like, “Let’s go out and kick ass,” and “Everybody goes to jail tonight for everything, right?”
51
United States v. Reese
, for example, the Ninth Circuit Court of Appeals described a drug task force completely corrupted by its dependence on federal drug money. Operating as a separate unit within the Oakland Housing Authority, the task force behaved, in the words of one officer, “more or less like a wolfpack,” driving up in police vehicles and taking “anything and everything we saw on the street corner.”
50
The officers were under tremendous pressure from their commander to keep their arrest numbers up, and all of the officers were aware that their jobs depended on the renewal of a federal grant. The task force commander emphasized that they would need statistics to show that the grant money was well spent and sent the task force out to begin a shift with comments like, “Let’s go out and kick ass,” and “Everybody goes to jail tonight for everything, right?”
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Journalists and investigators have documented numerous other instances in which police departments have engaged in illegal shakedowns, searches, and threats in search of forfeitable property and cash. In Florida, reporters reviewed nearly one thousand videotapes of highway traffic stops and found that police had used traffic violations as an excuse—or pretext—to confiscate “tens of thousands of dollars from motorists against whom there [was] no evidence of wrongdoing,” frequently taking the money without filing any criminal charges.
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Similarly, in Louisiana, journalists reported that Louisiana police engaged in massive pretextual stops in an effort to seize cash, with the money diverted to police department ski trips and other unauthorized uses.
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And in Southern California, a Los Angeles Sheriff’s Department employee reported that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures.
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Similarly, in Louisiana, journalists reported that Louisiana police engaged in massive pretextual stops in an effort to seize cash, with the money diverted to police department ski trips and other unauthorized uses.
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And in Southern California, a Los Angeles Sheriff’s Department employee reported that deputies routinely planted drugs and falsified police reports to establish probable cause for cash seizures.
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Lots of small seizures can be nearly as profitable, and require the expenditure of fewer investigative resources, than a few large busts. The Western Area Narcotics Task Force (WANT) became the focus of a major investigation in 1996 when almost $66,000 was discovered hidden in its headquarters. The investigation revealed that the task force seized large amounts of money, but also small amounts, and then dispensed it freely, unconstrained by reporting requirements or the task force’s mission. Some seizures were as small as eight cents. Another seizure of ninety-three cents prompted the local newspaper to observe that “once again the officers were taking whatever the suspects were carrying, even though by no stretch could pocket change be construed to be drug money.”
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In 2000, Congress passed the Civil Asset Forfeiture Reform Act which was meant to address many of the egregious examples of abuse of civil forfeiture. Some of the most widely cited examples involved wealthy whites whose property was seized. One highly publicized case involved a reclusive millionaire, Donald Scott, who was shot and killed when a multiagency task force raided his two-hundred-acre Malibu ranch purportedly in search of marijuana plants. They never found a single marijuana plant in the course of the search. A subsequent investigation revealed that the primary motivation for the raid was the possibility of forfeiting Scott’s property. If the forfeiture had been successful, it would have netted the law enforcement agencies about $5 million in assets.
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In another case, William Munnerlynn had his Learjet seized by the DEA after he inadvertently used it to transport a drug dealer. Though charges were dropped against him within seventy-two hours, the DEA refused to return his Learjet. Only after five years of litigation and tens of thousands of dollars in legal fees was he able to secure return of his jet. When the jet was returned, it had sustained $100,000 worth of damage.
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Such cases were atypical but got the attention of Congress.
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In another case, William Munnerlynn had his Learjet seized by the DEA after he inadvertently used it to transport a drug dealer. Though charges were dropped against him within seventy-two hours, the DEA refused to return his Learjet. Only after five years of litigation and tens of thousands of dollars in legal fees was he able to secure return of his jet. When the jet was returned, it had sustained $100,000 worth of damage.
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Such cases were atypical but got the attention of Congress.
The Reform Act resulted in a number of significant due-process changes, such as shifting the burden of proof onto the government, eliminating the requirement that an owner post a cost bond, and providing some minimal hardship protections for innocent parties who stand to lose their homes. These reforms, however, do not go nearly far enough.
Arguably the most significant reform is the creation of an “innocent owner” defense. Prior to the Reform Act, the Supreme Court had ruled that the guilt or innocence of the property’s owner was irrelevant to the
property’s
guilt—a ruling based on the archaic legal fiction that a piece of property could be “guilty” of a crime. The act remedied this insanity to some extent; it provides an “innocent owner” defense to those whose property has been seized. However, the defense is seriously undermined by the fact that the government’s burden of proof is so low—the government need only establish by a “preponderance of the evidence” that the property was involved in the commission of a drug crime. This standard of proof is significantly lower than the “clear and convincing evidence” standard contained in an earlier version of the legislation, and it is far lower than the “proof beyond a reasonable doubt” standard for criminal convictions.
property’s
guilt—a ruling based on the archaic legal fiction that a piece of property could be “guilty” of a crime. The act remedied this insanity to some extent; it provides an “innocent owner” defense to those whose property has been seized. However, the defense is seriously undermined by the fact that the government’s burden of proof is so low—the government need only establish by a “preponderance of the evidence” that the property was involved in the commission of a drug crime. This standard of proof is significantly lower than the “clear and convincing evidence” standard contained in an earlier version of the legislation, and it is far lower than the “proof beyond a reasonable doubt” standard for criminal convictions.
Once the government meets this minimal burden, the burden then shifts to the owner to prove that she “did not know of the conduct giving rise to the forfeiture” or that she did “all that reasonably could be expected under the circumstances to terminate such use of the property.” This means, for example, that a woman who knew that her husband occasionally smoked pot could have her car forfeited to the government because she allowed him to use her car. Because the “car” was guilty of transporting someone who had broken a drug law at some time, she could legally lose her only form of transportation, even though she herself committed no crime. Indeed, women who are involved in some relationship with men accused of drug crimes, typically husbands or boyfriends, are among the most frequent claimants in forfeiture proceedings.
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Courts have not been forgiving of women in these circumstances, frequently concluding that “the nature and circumstances of the marital relationship may give rise to an inference of knowledge by the spouse claiming innocent ownership.”
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Courts have not been forgiving of women in these circumstances, frequently concluding that “the nature and circumstances of the marital relationship may give rise to an inference of knowledge by the spouse claiming innocent ownership.”
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There are other problems with this framework, not the least of which being that the owner of the property is not entitled to the appointment of counsel in the forfeiture proceeding, unless he or she has been charged with a crime. The overwhelming majority of forfeiture cases do not involve any criminal charges, so the vast majority of people who have their cash, cars, or homes seized must represent themselves in court, against the federal government. Oddly, someone who has actually been charged with a crime is entitled to the appointment of counsel in civil forfeiture proceedings, but those whose property has been forfeited but whose conduct did not merit criminal charges are on their own. This helps to explain why up to 90 percent of forfeiture cases in some jurisdictions are not challenged. Most people simply cannot afford the considerable cost of hiring an attorney. Even if the cost is not an issue, the incentives are all wrong. If the police seized your car worth $5,000, or took $500 cash from your home, would you be willing to pay an attorney more than your assets are worth to get them back? If you haven’t been charged with a crime, are you willing to risk the possibility that fighting the forfeiture might prompt the government to file criminal charges against you?
The greatest failure of the Reform Act, however, has nothing to do with one’s due process rights once property has been seized in a drug investigation. Despite all of the new procedural rules and formal protections, the law does not address the single most serious problem associated with drug-war forfeiture laws: the profit motive in drug-law enforcement. Under the new law, drug busts motivated by the desire to seize cash, cars, homes, and other property are still perfectly legal. Law enforcement agencies are still allowed, through revenue-sharing agreements with the federal government, to keep seized assets for their own use. Clearly, so long as law enforcement is free to seize assets allegedly associated with illegal drug activity—without ever charging anyone with a crime—local police departments, as well as state and federal law enforcement agencies, will continue to have a direct pecuniary interest in the profitability and longevity of the drug war. The basic structure of the system remains intact.
None of this is to suggest that the financial rewards offered for police participation in the drug war are the only reason that law enforcement decided to embrace the war with zeal. Undoubtedly, the political and cultural context of the drug war—particularly in the early years—encouraged the roundup. When politicians declare a drug war, the police (our domestic warriors) undoubtedly feel some pressure to wage it. But it is doubtful that the drug war would have been launched with such intensity on the ground but for the bribes offered for law enforcement’s cooperation.
Today the bribes may no longer be necessary. Now that the SWAT teams, the multiagency drug task forces, and the drug enforcement agenda have become a regular part of federal, state, and local law enforcement, it appears the drug war is here to stay. Funding for the Byrne-sponsored drug task forces has dwindled in recent years, but President Obama has promised to revive the Byrne grant program, claiming that it is “critical to creating the anti-drug task forces our communities need.”
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Relatively little organized opposition to the drug war currently exists, and any dramatic effort to scale back the war may be publicly condemned as “soft” on crime. The war has become institutionalized. It is no longer a special program or politicized project; it is simply the way things are done.
Legal Misrepresentation60
Relatively little organized opposition to the drug war currently exists, and any dramatic effort to scale back the war may be publicly condemned as “soft” on crime. The war has become institutionalized. It is no longer a special program or politicized project; it is simply the way things are done.
So far, we have seen that the legal rules governing the drug war ensure that extraordinary numbers of people will be swept into the criminal justice system—arrested on drug charges, often for very minor offenses. But what happens after arrest? How does the design of the system help to ensure the creation of a massive undercaste?
Once arrested, one’s chances of ever being truly free of the system of control are slim, often to the vanishing point. Defendants are typically denied meaningful legal representation, pressured by the threat of a lengthy sentence into a plea bargain, and then placed under formal control—in prison or jail, on probation or parole. Most Americans probably have no idea how common it is for people to be convicted without ever having the benefit of legal representation, or how many people plead guilty to crimes they did not commit because of fear of mandatory sentences.
Tens of thousands of poor people go to jail every year without ever talking to a lawyer, and those who do meet with a lawyer for a drug offense often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of their lives. As one public defender explained to the
Los Angeles Times
, “They are herded like cattle [into the courtroom lockup], up at 3 or 4 in the morning. Then they have to make decisions that affect the rest of their lives. You can imagine how stressful it is.”
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Los Angeles Times
, “They are herded like cattle [into the courtroom lockup], up at 3 or 4 in the morning. Then they have to make decisions that affect the rest of their lives. You can imagine how stressful it is.”
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More than forty years ago, in
Gideon v. Wainwright
, the Supreme Court ruled that poor people accused of serious crimes were entitled to counsel. Yet thousands of people are processed through America’s courts annually either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation. In
Gideon
, the Supreme Court left it to state and local governments to decide how legal services should be funded. However, in the midst of a drug war, when politicians compete with each other to prove how “tough” they can be on crime and criminals, funding public defender offices and paying private attorneys to represent those accused of crimes has been a low priority.
Gideon v. Wainwright
, the Supreme Court ruled that poor people accused of serious crimes were entitled to counsel. Yet thousands of people are processed through America’s courts annually either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation. In
Gideon
, the Supreme Court left it to state and local governments to decide how legal services should be funded. However, in the midst of a drug war, when politicians compete with each other to prove how “tough” they can be on crime and criminals, funding public defender offices and paying private attorneys to represent those accused of crimes has been a low priority.
Approximately 80 percent of criminal defendants are indigent and thus unable to hire a lawyer.
62
Yet our nation’s public defender system is woefully inadequate. The most visible sign of the failed system is the astonishingly large caseloads public defenders routinely carry, making it impossible for them to provide meaningful representation to their clients. Sometimes defenders have well over one hundred clients at a time; many of these clients are facing decades behind bars or life imprisonment. Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from participating in the system. And some states deny representation to impoverished defendants on the theory that somehow they should be able to pay for a lawyer, even though they are scarecely able to pay for food or rent. In Virginia, for example, fees paid to court-appointed attorneys for representing someone charged with a felony that carries a sentence of less than twenty years are capped at $428. And in Wisconsin, more than 11,000 poor people go to court without representation every year because anyone who earns more than $3,000 per year is considered able to afford a lawyer.
63
In Lake Charles, Louisiana, the public defender office has only two investigators for the 2,500 new felony cases and 4,000 new misdemeanor cases assigned to the office each year.
64
The NAACP Legal Defense Fund and the Southern Center for Human Rights in Atlanta sued the city of Gulfport, Mississippi, alleging that the city operated a “modern day debtor’s prison” by jailing poor people who are unable to pay their fines and denying them the right to lawyers.
62
Yet our nation’s public defender system is woefully inadequate. The most visible sign of the failed system is the astonishingly large caseloads public defenders routinely carry, making it impossible for them to provide meaningful representation to their clients. Sometimes defenders have well over one hundred clients at a time; many of these clients are facing decades behind bars or life imprisonment. Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from participating in the system. And some states deny representation to impoverished defendants on the theory that somehow they should be able to pay for a lawyer, even though they are scarecely able to pay for food or rent. In Virginia, for example, fees paid to court-appointed attorneys for representing someone charged with a felony that carries a sentence of less than twenty years are capped at $428. And in Wisconsin, more than 11,000 poor people go to court without representation every year because anyone who earns more than $3,000 per year is considered able to afford a lawyer.
63
In Lake Charles, Louisiana, the public defender office has only two investigators for the 2,500 new felony cases and 4,000 new misdemeanor cases assigned to the office each year.
64
The NAACP Legal Defense Fund and the Southern Center for Human Rights in Atlanta sued the city of Gulfport, Mississippi, alleging that the city operated a “modern day debtor’s prison” by jailing poor people who are unable to pay their fines and denying them the right to lawyers.
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