Student Review:

Blumenson and Nilsen begin this article by noting that although massive amounts of time and money have been devoted to the war on drugs, the project has been a failure.  They find that the reason for the continuation of the program is the fact that the drug war now presents increased financial benefits to law enforcement agencies.  Forfeiture provisions provide that law enforcement agencies may seize drug-related assets and use the profits to fund their operations.  Thus, many police agencies use extensive drug enforcement efforts to achieve financial gains.  In addition, by providing their own financing, law enforcement agencies are no longer subject to the same amount of legislative scrutiny, a fact that causes more abuse in the targeting of drug-related assets.
      Federal programs created by Congress, such as the Byrne Program, provide federal funding directly for states to fight the war on drugs.  In addition, forfeiture provisions have been extended from their original purpose - to seize the means of drug production - to include the seizure of a number of other properties including cash, bank accounts, cars, homes, and land.  Other amendments provide that federal law enforcement agencies can keep drug assets and do not have to deposit them with the Treasury's General Fund.  States that are involved in federal drug arrests can receive up to 80 percent of the seized assets.  All of these laws have given states and local police monetary interest in forfeiture provisions, and encourage states to participate in profitable federal forfeitures.  Blumenson and Nilsen state that this emphasis on asset forfeiture has changed the nature of law enforcement itself.
      One of the problems created by the forfeiture provisions is the conflict of interest that occurs when the police are permitted to keep the assets they seize.  First, Blumenson and Nilsen have a due process objection in that defendants have a right to an impartial tribunal.  Conflicts of interest can occur when police and prosecutors personally profit from seizure decisions.   Factors used to determine impropriety in such situations include the degree of financial dependence on the decision, the personal interest involved, and funding formula used.  After an analysis of all three factors applied to drug forfeiture cases, the authors found that substantial temptation exists for law enforcement agencies to achieve financial gains.  Blumenson and Nilsen also have found examples of such conflicts of interests does exist in police behavior.  These examples include the use of reverse stings, police targeting the seizure of cash rather than drugs, and targeting minor offenders rather than drug kingpins.
      In addition to constitutional concerns, Blumenson and Nilsen found that the environment of asset forfeiture also raises policy objections.  When police target individuals due to the assets they may receive, the purposes behind law enforcement suffer.  Targeting assets undermines drug law enforcement strategies, neglects more serious crime problems, limits other approaches to the drug problem, and encourages the police to act illegally for monetary profit.
      Blumenson and Nilsen also raise objections to allowing police to self-finance their operations without legislative control over finances.  Self-financing raises both a separation of powers problem as well as policy objections to law enforcement agencies that operate without legislative oversight.  The authors finally urge judicial and legislative reform to change the current forfeiture laws.  Such a change will offer the only hope to win the war on drugs.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999