Taking money and property has become a major part of the War on Drugs. Who is it helping?
by Jesse Fox Mayshark
The red Honda four-wheeler was just parked there near a marijuana patch in Campbell County. There were some garbage bags sitting on it, along with residue from fertilizer. A Sheriff's Department pilot flying over had spotted the dope field, a common sight in the county's coal-stripped hills. Someone had been tending the plants but fled on foot at the sound of the plane. By the time officers got there, all that was left was the ATV. So they took it.
Months later, Yarbi Sallee is determined to keep it for them. A quick-witted prosecutor for the state Department of Safety (and a member of Mensa, according to a certificate on her bulletin board), Sallee has all sorts of questions for the Campbell County lawyer who has showed up to try to get his client's Honda back.
She wants to know why the vehicle happened to be parked so close to a remote drug pasture. "Was it the ATV fairy, or what?"
"My man was at school, and he can prove it," the lawyer retorts.
"What was the ATV doing there?"
"He reported it stolen."
"Was that before or after it was seized?"
"I don't know. He was in school."
Sallee smiles. "I'll bet you $10 it was after."
There's some jocularity in the pre-hearing give and take; both sides have been through this before. If Sallee is successful in this case, the Campbell County Sheriff's Department will get to keep the ATV, valued at around $2,000—even though no one was ever charged with anything.
What Sallee and five other attorneys like her across the state do is one of the least visible but most controversial parts of the "War on Drugs." Law enforcement agencies say the money from fines and forfeitures keeps them better equipped and trained and saves taxpayers money. But a growing number of critics, including some conservative congressmen, think it's changed the drug war's focus, giving law enforcement an incentive to keep the battle at fever pitch rather than look for alternative solutions. As one local defense attorney puts it, "I think the police have gotten addicted to drug money."
Knox County spends a lot of money fighting the drug trade—a lot more than it did even 10 years ago. In 1989, the Knox County Sheriff's Department budgeted $231,000 for its Narcotics Division. In 1999, the number was $559,031. On the city side, the Knoxville Police Department spent $98,000 on drug enforcement in 1989, compared to $694,000 in 1998.
That kind of spending produces results. Countywide in 1989, there were 1,179 drug charges filed, according to data from the district attorney general's office. Just in the first eight months of this year, there were 2,114. (In August alone, there were 375 drug warrants filed in Knox County Circuit Court. That's more than were filed in the first two years of the 1980s.)
But as law enforcement officers are quick to point out, only a portion of that money comes out of the public wallet. The beauty of drug enforcement, from the police point of view, is that it almost pays for itself.
"I don't know of another agency that's self-sufficient," boasts KPD Deputy Chief Jerry Day. "It's not actually coming out of your tax dollar."
He's right. Apart from salaries, which by law must be paid from general tax funds, much of the anti-drug work done by local agencies is paid for with fines and forfeitures from drug defendants themselves. Broad seizure laws—in Tennessee, it's called the Drug Control Act—have allowed police to take a lot of property and money from people accused of even minor drug offenses.
The rationale behind seizure laws is simple: defendants shouldn't be able to keep money and property that was used to commit a crime. It goes back historically to English common law and was used to seize contraband at sea, among other things. But critics might find equal relevance in another, darker precedent: during the Inquisitions that swept Europe in the Middle Ages, the church and state could take the property of anyone convicted of heresy. The proceeds were typically split between the Vatican, the regional Inquisitor, and the local lay authorities. Historians say the cash incentive significantly boosted the number of heresy cases.
Day says it's silly to think anything similar is going on in drug enforcement. "We don't say, 'Okay, we've gotta have $300,000 in seized funds this year, so let's go out and seize more,'" he says.
It's hard to tally the money exactly, because most of it is maintained by the Knox County Finance Department and distributed as requested by the two agencies. Anyone asking questions about the funds tends to get referred back and forth, sometimes with inconclusive results. But it's clear both departments rely heavily on their drug funds.
Last year, the Sheriff's Department drew $462,000 out of its special drug fund. Nearly one-quarter of that—$95,000—went for "drug control payments," confidential undercover work. Officials say the money is used to set up sting operations and fund drug purchases, but they're not legally required to disclose more than that. Sheriff Tim Hutchison created statewide controversy three years ago by building a new firing range with drug funds and not informing County Commission until it was nearly finished. That led to tighter restrictions on drug fund accounting across Tennessee. In the current year, the department has budgeted $100,000 in confidential spending.
The Knoxville Police Department, meanwhile, took in more than $300,000 in fines and forfeitures in each of the last two years. That's a small part of the department's total $28 million budget, but a significant chunk of the $694,000 budgeted for drug enforcement.
Tom Dillard, one of Knoxville's most respected defense attorneys, says, "Now state and local governments are becoming proud of the fact that they are self-sufficient. We have basically created a monster, because it feeds on itself."
"I can tell you point blank that what we do is not favored by the public," Joe Bartlett says, propping his right foot on his left knee and leaning back in his chair. "And that's sad, because what we do is a service to the public."
That depends, of course, on which part of the public you belong to. If you're caught with even a small amount of marijuana or cocaine in your car, or if your son or grandson is, or if you even lend your car to a friend who uses it to drive downtown and buy drugs, you're not going to like Bartlett's services. A large man with thick gray hair and the bearing of a gregarious walrus, Bartlett has almost single-handedly made Tennessee one of the toughest states in the nation when it comes to property seizures.
Tennessee's seizure laws go back at least to the early 1970s. For reasons no one is sure of anymore, their enforcement falls to the state Department of Safety, a catch-all agency that oversees the Tennessee Highway Patrol, vehicle registration, and driver's license issuing. When Bartlett joined the department as a forfeiture attorney 14 years ago, he was the only one. He rode a circuit, prosecuting seizure cases from Knoxville to Memphis.
"When I first came here, there were only about 400 cases a year," he says. "Now we do 10- to 12,000." The department now has six attorneys, two each in East, Middle, and West Tennessee. Bartlett works out of Memphis, but he oversees all three offices. The local branch, where Yarbi Sallee is based, is a storefront in a nondescript business park off Baum Drive in Bearden. Many lawyers and judges in the Knox County court system don't even know where it is or what it does.
The huge increase in cases is partly due to more drug traffic, Bartlett says, but mostly to tougher laws and more aggressive enforcement. Bartlett can take credit for both. He lobbied the state to adopt laws and techniques he picked up at national law enforcement conferences, and then helped train police across the state to look for and capitalize on seizure opportunities. He says with satisfaction that officers making traffic stops now think about civil forfeiture procedures in addition to making a criminal case.
It pays off. In the first eight months of 1999, there were 9,291 seizure cases across the state (3,500 of them in East Tennessee). So far, they've netted $9.5 million in fines and forfeitures, plus 3,007 seized vehicles (About one-third of the cases involve repeat DUI offenders, not drugs.) Bartlett says his office takes in an average of $12 million a year. Most of that money goes directly to local police agencies.
Seizure cases are strange legal animals. They are civil suits filed by the state against the property in question, not against any individual. The state has to prove "by a preponderance of the evidence" (a much lower standard than the "beyond reasonable doubt" used in criminal cases) that the property—like the red Honda ATV—was involved in criminal activity. Anyone with a stake in the property has to prove that they didn't know about or give implicit or explicit consent to the activity. And while police say they don't file warrants for truly minor offenses—a joint in the ashtray, for example—they do take cars and cash even in misdemeanor cases.
"You're never going to stop the supply until you stop the demand," Bartlett says. "For years, governments said we're only going to focus on the big dealers. That's a mistake, I think...It has to be so uncomfortable for the user that using it becomes not the norm."
Tom Dillard knows about seizing property. He used to do it. The tall, trim attorney was a federal prosecutor for 14 years in northern Florida, the heart of drug country.
"What started out as a very well-intentioned program to rid drug dealers of their ill-gotten gains basically got out of control," he says. "It became a tool that was used in a manner that was never intended. The last thing in the world anybody ever thought of was that over time we would get to the point where local agencies were dependent on forfeitures."
Dillard says the federal government started seizing property to get at drug dealers who were otherwise untouchable. If a major dealer fled the country, at least agents could impound his drug-financed possessions—"You could get an extraordinary amount of money and property, because the drug dealer's not going to come back and fight you." But for years, federal agencies kept for themselves everything they seized. That led to competition between federal and local agencies to be the first ones to stake a claim.
"There were actually cases where the feds and the states would pull guns on each other to keep them away from their property," Dillard says. "None of that was ever reported, of course."
Things changed around 1984, when federal and state agencies started sharing money from their busts. Dillard was on a committee that drew up guidelines for splitting the proceeds according to each agency's participation in the investigation. Soon after, he says, drug enforcement at all levels took off. (In Knox County, drug charges filed rose from 298 in 1983 to 715 in 1984 and 1,310 in 1985.)
Now, forfeitures have become commonplace even for misdemeanor drug offenses. Defense attorneys claim that law enforcement agencies often seize first and ask questions later. Dillard cites the example of a Mexican scrap metal dealer named Alfredo Longoria, who he says was making a regular buying trip through the U.S. when he was pulled over for speeding in Campbell County. Although Longoria spoke little English, deputies obtained consent from him to search his metal-laden truck. They didn't find drugs, but they did find about $10,000 in cash, which Dillard says was Longoria's bankroll for the trip. Assuming it was drug money, the deputies seized it. Longoria came to Knoxville and hired Dillard to get it back. He did, but it took months.
"I'm sure their thinking is, we give him his truck back, we give him his parts back, we send him on his way, he's not going to fight it," Dillard says.
Bartlett says nearly 60 percent of seizures aren't contested at all and are simply forfeited directly to the local agency. Another 30 percent end in settlements, where the property owner agrees to make a "donation," often of several hundred dollars, into the law enforcement agency's drug fund.
Only 10 percent actually go to a hearing. (Defense lawyers say that's partly because the system is so complicated many people can't figure it out. Although they can fill out a "Pauper's Oath" requesting a lawyer if they can't afford one, one attorney says, "A lot of my clients don't even know what 'pauper's oath' means.") Also, to contest the seizure you have to put up $350 to cover the hearing fees. You only get the fee back if you're successful; if not, you lose your property and your $350.
One odd wrinkle is that even if defendants win in criminal court—if drug possession charges are dismissed, for example—they can still lose their property, because the civil case is completely separate. Also, forfeiture cases tend to move faster than criminal cases, which means that anything a defendant testifies to in the civil court could be used against them in a later criminal trial.
There are appeals in the forfeiture process too, but they're byzantine. Someone who loses a car in a Department of Safety hearing in Knoxville can appeal to the Commissioner of Safety in Nashville. If the commissioner also rules against them, they can take the case to chancery court—but only in Davidson County, since that's the commissioner's legal residence. Not surprisingly, few people outside of Middle Tennessee make the trek.
"The system is designed to discourage the plaintiff from ever getting his money back," Dillard says. "It scares me to death when I see some of the things that are being done by law enforcement agencies in the name of forfeitures. And it appears to me the revenue that's generated by these forfeitures has taken over the original goal. It's like a bounty hunt, almost."
Bartlett, like law enforcement officers themselves, shrugs that off. "As far as making people rich, it's not," he says. "It may be making the community better off, because then tax dollars don't go for those purposes."
Concern about the increased emphasis on seizure and forfeiture has generated interest from some surprising sources. Republican Congressman Henry Hyde of Illinois, chairman of the House Judiciary Committee, wrote a letter this year urging his colleagues to support a "Civil Asset Forfeiture Reform Act" to change federal forfeiture procedures. "Believe it or not," he wrote, "federal officials have the power to seize your home, your car, your business, and your bank account—all without indictment, hearing, or trial."
But no similar debate is going on at the state level, where local agencies get most of their forfeitures. Bartlett, for one, doesn't think any reforms are needed. He encourages agencies to be as aggressive as possible in pursuing property.
"If you've got an agency who's really pursuing the Drug Control Act, they'll tell me that over time, they'll see a major drop in drug activity," he says.
But Dillard thinks law enforcement agencies are damaging themselves in the long run, making enemies of people who had respected them.
"I've had plenty of clients who were good citizens in the community, hard-working people who I'm sure had that very philosophy until it happened to their child, to their wife, or to them," he says. "Doctors who had their car seized because their kid had an ounce of marijuana, businessmen who had their car seized for a meager amount—things like that happen, and it's amazing how fast people's ideas change."
| 
