To Protect and Collect

Taking Cash Into Custody

A Special Report On Police And Drug Money Seizures

STATES' FORFEITURE WOES TRACE TO FEDERAL OFFICIALS

The U.S.  Department of Justice is far more than a silent partner in the mass evasion of state laws by local police and state patrols. 

In fact, the Justice Department is the main culprit, The Kansas City Star has found. 

The Justice Department invented the system that allows police to keep most of the drug money they seize contrary to most state laws.  It then trained police how to use the system and fought efforts to reform it, The Star found. 

The chief sponsor of the 1984 law that created a partnership between federal agencies and police now wishes he had never opened the door. 

"It was never envisioned that the feds would circumvent state law," says former U.S.  Rep.  William J.  Hughes, a New Jersey Democrat. 

Justice Department officials say they never have encouraged police to avoid their own laws. 

"A real motivation on the federal side is to reward the help we get from our brother and sister law enforcement," said Jerry McDowell, head of the Justice Department's money laundering and asset forfeiture division. 

"The real motivation here is to knock the socks off the criminal gangs."

But the hand-offs are possible only because the Justice Department twisted the 1984 law, which simply allowed federal agencies to share forfeitures with local police who helped in a joint investigation. 

In addition to addressing joint investigations, the Justice Department wrote guidelines that established an "adoption" procedure, allowing federal agencies to adopt forfeitures from local cases when they weren't even involved. 

Even as they were writing the guidelines, Justice Department officials had in hand a study showing that adoptions would conflict with state laws, most of which made some effort to keep seized money from going directly back to police. 

The study showed more than half the states specifically designated the money to go somewhere else, such as to a state fund. 

But Justice attorneys determined that state laws did not specifically prohibit police from turning over a seizure to a federal agency. 

State and local law enforcement quickly began taking their seizures to the federal government, said David Smith, who worked with forfeitures in the Justice Department in the early 1980s. 

"I don't think anybody ever anticipated that it would be as wildly successful as it was in getting the police motivated to do more forfeitures," said Smith, who left the department in 1986 and now is co-chairman of a committee on forfeiture abuse for the National Association of Criminal Defense Lawyers. 

Not a hard sell

The quick launch of the adoption program came thanks to training seminars that the Justice Department put on to show police how to take advantage of it. 

Brad Cates, then-director of the department's Office of Asset Forfeiture, pointed out in 1988 that training was going especially well in California. 

"Something like 500 police chiefs and whatnot have attended," Cates told a House judiciary subcommittee hearing that year. 

Beyond training, federal officials sometimes have recruited police. 

In 1990, just a few days after the Missouri Supreme Court ruled that state forfeitures had to go to education in most cases, the U.S.  attorney for the Western District of Missouri wrote a letter to state and local law enforcement agencies. 

"I know that all of you in law enforcement are in desperate need for additional financial About Drug Test," wrote Jean Paul Bradshaw.  He explained that police could bring seizures to a federal agency even if the agency had no involvement in the case. 

"As most of you know, the money we share through our forfeiture program goes {directly} to the state or local law enforcement agency," he wrote. 

Not that the federal program has ever been a hard sell to police. 

For example, the North Carolina State Highway Patrol was reluctant to expand its role and step up seizures from traffic stops _ until a DEA agent presented the federal forfeiture program during a meeting. 

"Then everybody's eyes lit up," the head of North Carolina's Department of Crime Control and Public Safety told congressmen in 1989. 

In two years, the Justice Department returned more than $117 million in adoptive and joint proceeds to state and local departments across the country. 

But police were circumventing state laws to take part in the federal program.  For example, in California, where federal agencies were focusing their program, state law at that time required forfeited money to go to a mental health fund.  But police themselves got $48 million in just one year. 

"We receive a case which is in every aspect a local case, been worked on pretty much by the local agencies all the way from beginning to end, and we put our cover on it," Joe Whitley, deputy assistant attorney general, told the House judiciary subcommittee. 

Then-U.S.  Rep.  Lawrence J.  Smith, a Florida Democrat, was shocked. 

"What you are telling me basically is that the federal government is complicit with the law enforcement agencies in California in trying to, in essence, subvert the California state law," Smith said. 

Such revelations led Hughes in 1988 to sponsor an amendment to prohibit federal agencies from overriding state forfeiture laws.  Congress passed the amendment, which was to take effect Oct.  1, 1989. 

But Justice and law enforcement lobbied against it.  And unbeknownst to many members of Congress, a repeal of the amendment had been slipped into a large defense appropriations bill. 

"We did not know about that ( provision ) until after it was approved," Hughes says today.  "We were all surprised."

Even now, Hughes and others say they don't know who was responsible for the measure. 

To Hughes, the issue was dead.  He said he wrote then-U.S.  Attorney General Richard Thornburgh to request a meeting about the forfeitures but never got a response. 

"I made a very serious effort to try to stem what looked like would become a pretty regular practice of circumventing state law," Hughes said.  "The power of law enforcement was too much."

Thornburgh, who is now a Washington lawyer, for the past six months did not return a reporter's telephone calls requesting an interview. 

But Edwin Meese III, who was U.S.  attorney general during the early years of the federal program, said he is worried about the direction of adoptions. 

"This is a serious problem," said Meese, who is now with the Heritage Foundation. 

"It is important for law enforcement leaders not to allow the money to be the tail wagging the dog."

Even Bradshaw, the former U.S.  attorney in Kansas City, now questions the adoption program. 

"It seems to me it is getting far afield from what it was intended, from what perhaps the federal role ought to be," Bradshaw said. 

Index http://www.mapinc.org/drugnews/v00/n682/a02.html