Florida, Tennessee, others wrestle with drug forfeiture laws

Saturday, May 11, 2013 at 8:35am

BAL HARBOUR, Fla. — In this upscale seaside village of about 2,500 permanent residents, the main challenges for Bal Harbour's 30-member police force are thefts from its high-end shopping mall, speeders along Florida's famed A1A highway and vehicle break-ins. But the department managed to rake in millions of dollars in forfeited drug proceeds by leading a task force that conducted investigations across the country, many with little or no link to the South Florida town.

In fact, in 2011, Bal Harbour got more than $5 million through its money-laundering investigations from a U.S. Justice Department asset forfeiture sharing program, more than any Florida law enforcement agency that year. The Tri-County Task Force's agents worked out of a trailer in Bal Harbour and included deputies from a nearby county and a contract employee who worked at a federal immigration officer in California.

The money went for salaries, travel and confidential informant payments — some of which have been questioned as improper by Justice Department investigators — as well as a $100,000 police boat and a $225,000 surveillance truck.

While perhaps an extreme example, Bal Harbour's task force highlights the way many law enforcement agencies are using the expanding federal program along with permissive state forfeiture laws to seize cash, property and assets in criminal cases that sometimes didn't even happen in their jurisdictions. Under the federal program, state and local police agencies are rewarded for participating with federal authorities in joint investigations. The locals' contributions can range from providing leads to essentially running the investigation from start to finish.

Often, it's only a suspected link to crime that leads to a civil seizure, which can force people to prove they are innocent to get their cash or property back.

To many legal experts, that's a perversion of a U.S. justice system in which a person is supposed to be presumed innocent, tempting police to focus on cash instead of crime and diverting resources from more urgent safety threats.

"This is a country where we have a Bill of Rights to protect the people from the government," said Tamara Lave, a former public defender who is now a law professor at the University of Miami. "This is a way of giving the government greater power and it's an institutional way of undermining people's rights."

Prosecutors value forfeiture because it can hit criminals where it hurts — in the wallet — and deprives them of the fruits of crime.

"If there was no forfeiture, then it is conceivable that a defendant could serve their time and when he or she gets out, still have access to the funds the criminal enterprise produced," said David S. Weinstein, a former South Florida federal prosecutor now in private practice. "Punishment is about more than putting people in jail."

But, Weinstein added: "The more jaded viewpoint is that it is an easy way for an agency to get cash and property."

The biggest asset forfeiture program is the Justice Department's Equitable Sharing, which Bal Harbour's drug task force used. It has grown from $297.5 million in payouts in 2006 to almost $454 million in 2012, according to Justice Department records.

Separately, untold millions more are seized and kept by law enforcement agencies under state forfeiture laws.

Over the same period the federal payouts have increased, according to the FBI, overall rates of crime have been dropping, although police reported a slight uptick in 2012.

In Bal Harbour, there were 56 total arrests in 2010 and 53 in 2011, according to the Justice Department. Over the two years, 18 involved drug violations.

Drug cartels, money launderers, Mafia organizations and fraud rings are among those in criminal cases whose assets are seized and deposited into this program. Yet sometimes prosecutors use civil forfeiture laws — which have a lower standard of proof than criminal cases — to seize property that may be only loosely connected to potential criminal actions.

In Bal Harbour's case, tipsters were used to set up drug money-laundering pickups by undercover officers in at least 13 locations around the U.S. After the money changed hands, the U.S. Drug Enforcement Administration would arrest the suspects, and Bal Harbour would apply for its cut of the forfeited cash.

Another different kind of example involves the Motel Caswell on Main Street in Tewksbury, Mass. The family-owned business, operated by 69-year-old Russell Caswell, was targeted for seizure by federal prosecutors who contended it was being used to "facilitate" ongoing illegal drug activity. Caswell denied it and was never charged with a crime, but faced losing a business that his father had built in 1955.

A federal judge ruled in January that there was no proof Caswell tolerated drug activity, much less encouraged it. In fact, U.S. Magistrate Judge Judith Gail Dein said in a 59-page decision that Caswell allowed police free reign over the property and he had no responsibility to tackle the drug problem by himself.

"Courts do not expect the common land owner to eradicate a problem which our able law enforcement organizations cannot control," Dein wrote.

One of Caswell's attorneys, Larry Salzman of the Arlington, Va.-based Institute for Justice public interest law firm, said the case illustrates how forfeiture laws have influenced police.

"It's quick cash for the local agency," Salzman said. "There are places that have these task forces that exist simply to seize money."

According to the institute, law enforcement agencies are allowed to keep 100 percent of seized assets in 26 states, with another 16 states allowing them to keep half. Most states require property owners to establish their innocence, with only six — California, Florida, Colorado, Kansas, Michigan and Oregon — requiring the government to prove guilt.

The federal government must prove a person's connection to crime, but using the lower civil "preponderance of the evidence" standard — in other words, a little more likely than not — rather than the "beyond a reasonable doubt" standard required in criminal cases. Georgia legislation to raise the legal standard and make other reforms failed to pass after fierce resistance from police agencies.

Along Interstate 40 in Tennessee between Nashville and Memphis, task forces were created to catch drug dealers and seize cash using the state's forfeiture laws. Investigators noticed that if they stopped westbound cars they'd be more likely to find drug money, while the eastbound cars were more likely to contain drugs.

It became clear which side was lucrative for investigators, said Tennessee state Rep. Barrett Rich, a former state trooper sponsored a bill this year to give people more rights in forfeiture proceedings.

"It seems the focus in Tennessee has gone from getting the drugs off the street and instead placing an emphasis on the money," said Rich, a Republican.

The problem in Tennessee, Rich said, is that innocent people who had large amounts of cash seized were forced to await the outcome of a forfeiture hearing if they wanted it back. The judge and law enforcement officials meet in private to decide what to do.

According to the Beacon Center of Tennessee, a public policy research group, questionable stops included a Georgia lottery winner who had $20,000 in cash seized and a man helping his mother move with her life savings, from whom $27,500 was taken. It's unclear from the report whether they got their money back.

Back in Bal Harbour, former police chief Thomas Hunker was fired following a Justice Department probe into its drug task force, which has been disbanded in the wake of the controversy. Among the investigation's findings were that more than $263,000 was improperly paid out of forfeiture funds for salaries and an American Express for travel expenses.

The village has been forced to repay $1.2 million to the Justice Department, said interim city manager Jay Smith, and could be on the hook for millions more.

Hunker's attorney, Richard Sharpstein, said the Justice Department probe made numerous false accusations — Justice officials refused comment on the investigation — and that the task force was responsible for more than 200 arrests.

"Chief Hunker served and protected the citizens of this community steadfastly for a decade," Sharpstein said.

15 Comments on this post:

By: govskeptic on 5/12/13 at 8:28

Tenn law enforcement has abused this law unmercifully in some counties and
often with the go ahead by the DA's in those counties. See the Newschannel5.com
website to view investigations on this subject.

By: Loner on 5/13/13 at 6:40

The War on Drugs is a sham, a scam and a flimflam.....always was...always will be.

The draconian forfeiture laws are probably unconstitutional...but since so many "honorable" people are becoming wealthy , thanks to these laws, they are here to stay....we have the best police that money can buy...the best judges that money can buy....and the best politicians that money can buy.

And one other thing, Barack Hussein Abama promised hope & change....the man is a reneger....this is the same old shit.

By: Loner on 5/13/13 at 7:08

Since the police, the lawyers, the politicians and the judges are all benefitting financially from the ill-conceived War on Drugs, the corruption is here to stay...it's institutional and the professional zealots who are hauling in the cash have a hammerlock on commitment...just ask any one of them....they are the professional good guys..... on a mission from God......cleaning out society's low life while padding their operational budgets.

By: Loner on 5/13/13 at 7:24

Since the War on Drugs has been so financially rewarding for our crimninal justice system and for our politicians...and since the major media have other fish to fry....there is no incentive to end this travesty of justice....all the pressure is for maintaining the staus quo, increasing the number of items that can be confiscated by the authorities and stripping the accused of their constitutional rights.

The War on Drugs has succeeded in corrupting our criminal justice system and its political machinery.....the criminal justice system is now addicted to busting people and seizing their assets....it's a million-dollar-a-day habit.

Sham. Scam. Flimflam.

And for you Bible Belt Believers: What Would Jesus Do? Would Jesus condemn people who smoke Cannabis...or grow it? Methinks not.

Christ would have rolled Divine Doobies.....and sang, "Kum-Ba-Yah"...he was not a corrupt cop, judge or politician busting people over the head and stealing everything they have.

By: Loner on 5/13/13 at 7:47

Just to be fair and balanced: How about we seize the assets of accused tax cheats, or tax delinquents, like we do with accused Cannabis smokers, dealers and growers?

How far would an idea like that go in Congress or in any state-house? Too close to home for comfort?

By: Rasputin72 on 5/13/13 at 8:05

I think what LONER so passionately and eloguently is posting,never pass a law that encourages criminals to become central to the criminal justice system.

Cops from my vantage point are only one natch above the criminal element they pursue.

By: Loner on 5/13/13 at 8:23

Should the US government seize the assets of the Haslam family until this Pilot-Flying J fraud investigation and all legal actions have been completed?

Why strip the drug law defendants of their abilities to defend themselves in a court of law, while we allow the really huge rats, like the Haslams, to keep their ill-gotten wealth, so as to be able to defend themselves in court?

This double standard for Drug War defendants is a disfiguring blemish on the US criminal justice system and it’s gotta go…..but don’t hold your breath, there’s no incentive for reform.

By: Loner on 5/13/13 at 8:30

Rasp, it's like the food chain....you need plant-eaters to support the carnivores....the Cannabis growers, dealers and smokers are the plant eaters, the herbivores...the cops, politicians, judges, lawyers, prison-workers, re-hab workers are all carnivores preying on the herbivores.

Without lots of "criminals", acting as the herbivores, the carnivores would starve to death or resort to cannibalism.

It's Darwinian.

By: Loner on 5/13/13 at 8:47

If the criminal justice system is rewarded, by grabbing a share of the ill-gotten wealth, then there is no motivation to actually solve the "problem"...the incentive is to perpetuate the "problem"....again, it's simply human nature....when will we ever learn?

By: murdog on 5/13/13 at 11:28

Freedom is just another word for nothing left to loose. We have handed over our freedoms for years because the "sheeple" have been told that they have "threats" to them and that they should fear those "threats". "It is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country" - Herman Goering. The gun control people use the same rational. The drug war uses the same rational. I don't smoke pot or do any drugs what so ever but trying to outlaw a plant that has grown wild long before man came along is really crazy when you think about it and the drug war is a complete failure and there are more drugs than ever before on the street and yet we all know that the only thing that has happened is now you can't even drive to Memphis with cash in your pocket without fear of some redneck adrenaline junkie cops stopping you and searching your vehicle and seizing your money and then you having to hire an attorney and proving that its yours legally and trying to get it back. It's not freedom and its not America that we were raised to believe in. The cops are no different than the criminals in my mind they just have draconian laws behind them. The general public really has no idea about any of this. Sadly, the republicans have fostered more of these laws on us than anyone else and its sad, our country is irreparable with the system we have I'm afraid and meanwhile we want to focus on issues like whether gay people can get married or not which in a free country should be a given, while the government hasn't prosecuted one single banker in the greatest heist and transfer of wealth the world has ever seen. Neither one of the parties on a national level care anything about you and if you think they do you are fooling yourself.

By: Loner on 5/13/13 at 12:06

Good post, Murdog, but try paragraph breaks for clarity....we do share some common ground here, left and right.

By: GUARDIAN on 5/13/13 at 12:12

I have worked and trained officers everywhere from DOJ on the Federal level down to the local level . I believe that if you are caught in a drug deal of any size that everything you have should be subject to be on the block for seizure but just having any amount of money you have on your person is off limits if you have NO Criminal History . I've known two friends that never used drugs much less sold them who had large amounts of money seized . they were on their way to buy show cars/street rods and ended up having to hire lawyers to get part of their money back . if I had someone try to seize any money I had on my person I would treat them like a armed robbers and the survivor could explain it to the court who was in the right . GUARDIAN-GOD, COUNTRY, FAMILY and FRIENDS. The American Way.

By: Loner on 5/13/13 at 1:51

Guardian...move to Saudi Arabia...they would agree with you 100%....actually, they behead drug dealers there.....you'd like it there, no?

By: Loner on 5/13/13 at 1:57

If Guardian were appointed as Drug Czar, the police would soon own the entire economy...forfeitures, confiscations, seizures, impoundments would be ubiquitous….that’s the “American Way”? Sounds like the fascist police-state way, to me.

"God, country, family & friends? You forgot "guns".

By: GUARDIAN on 5/13/13 at 9:59

Loner are you a drug dealer or do you only use large amounts of drugs to turn yourself into a self made moron. . GUARDIAN-GOD, COUNTRY, FAMILY and FRIENDS. The American Way.