Pubdate: Mon, 20 Nov 2000
Source: Kansas City Star (MO)
Copyright: 2000 The Kansas City Star
Contact:  1729 Grand Blvd., Kansas City, Mo. 64108
Feedback: http://www.kansascity.com/Discussion/
Website: http://www.kcstar.com/
Author: Karen Dillon - The Kansas City Star

SOUTHERN LAWMAKERS DISCUSS DRUG MONEY FORFEITURE

CORAL GABLES, Fla. -- The debate over the way police handle drug 
money they seize became a major focus of lawmakers from 16 southern 
states who gathered here this weekend.

"This is almost as controversial as the presidential election," said 
Dana Dembrow, a Maryland lawmaker. Forfeiture was the subject of one 
of two main sessions at the four-day winter meeting of the Southern 
Legislative Conference of the Council of State Governments. In 
addition, several legislators said they plan to pursue reform of 
forfeiture laws in their states. Dembrow said he would propose that 
the Southern Legislative Conference ask Congress to help settle the 
issue. Forfeiture has become an issue nationwide this year. In 
articles earlier this year, The Kansas City Star found police were 
evading state laws across the country, including in Missouri, by 
handing off property and cash they seize in drug cases to a federal 
agency, such as the Drug Enforcement Administration. The agency keeps 
a cut, usually 20 percent, and returns the rest to police. Of the 16 
states in the Southern Legislative Conference, including Missouri, 
The Star checked 14 for the series -- all except Mississippi and 
Virginia. In each of them, the newspaper found either cases in which 
police handed off seized property to a federal agency or found police 
who acknowledged they routinely do. Most states have laws that 
prevent police from unilaterally turning over seized property to a 
federal agency.

In fact, of the 16 southern states, only Mississippi does not have 
such a law. In a panel discussion that he moderated Saturday, 
Dembrow, who is chairman of the southern group's Intergovernmental 
Affairs Committee, asked four panelists whether federal, state and 
local police were circumventing state forfeiture laws. Sen. Harry 
Wiggins of Missouri said it was clear that in his state and others, 
seized money is not being used for purposes that taxpayers expect.

Drug money forfeited under Missouri law is supposed to go to public 
education, said Wiggins, a Kansas City Democrat who has a reform bill 
pending. He said he was not pointing fingers at law enforcement or 
trying to accuse anyone of wrongdoing, but that laws need to be 
followed -- and in Missouri, the law is clear, he said. "The will of 
the people should be the supreme law," Wiggins said. "I believe the 
people of Missouri have spoken." Two attorneys from the Justice and 
Treasury departments said there was no attempt by their agencies to 
circumvent state forfeiture laws. The appearance was unusual.

Justice officials have seldom spoken publicly this year about 
forfeiture. They said the program that allows police and federal 
agencies to share forfeited property has been a financial boon for 
law enforcement. Since its inception in 1986, state and local law 
enforcement agencies had received more than $2 billion, according to 
statistics handed out by the attorneys.

The 16 southern states alone accounted for more than $1 billion. 
Steven Schlesinger, trial attorney for the Department of Justice 
Asset Forfeiture and Money Laundering division, said the money has 
been spent for investigations, training, uniforms, weapons and cars. 
"That is money that didn't have to come out of your taxpayers' 
pockets," Schlesinger said. "States, communities and law enforcement 
agencies have benefited tremendously from this program." He said that 
because of the program's benefits it would be shortsighted for states 
to withdraw from it. Schlesinger said the hand-off of seizures from 
police to federal agencies was only a small percentage of the $2 
billion. However, he acknowledged he could not say exactly how much 
money that was. Earlier this year the Justice Department gave The 
Star figures showing federal agencies accepted a total of more than 
$208 million over a three-year period from local and state police. 
Schlesinger said the primary goal of the forfeiture program is to 
punish criminal activity by depriving criminals of the fruits of 
their crimes and to take away property used to facilitate a crime. 
Several of the lawmakers in the audience of more than 40 questioned 
Schlesinger on a variety of issues. For example, Schlesinger said 
state and local police must follow strict guidelines before a federal 
agency will accept a seizure.

But one legislator said federal agencies appear to be operating much 
differently. Schlesinger threw some of the responsibility back on the 
states. Law enforcement agencies in some states are hampered by their 
own inadequate forfeiture laws, he said. He pointed to Missouri as an 
example of a state where the law forces police to go to federal 
agencies with their seizures. "It has a major loophole," he said. 
Missouri law requires a felony conviction before property can be 
forfeited, and that becomes a problem for police who find a large 
amount of cash but can't prove there was a crime, he said. But police 
can use federal law because it permits a law enforcement agency to 
declare property forfeited without a conviction. Steven Kessler, a 
New York criminal defense attorney, disputed that Missouri had a 
loophole. "What a novel idea," Kessler said. "I advocate that 
loophole to each and every one of you in this room." Requiring a 
criminal conviction for a forfeiture is actually a protection for the 
public, he said. "I must ask you, is it a violation of any law in any 
state in the country to be carrying cash?" Kessler asked. Kessler, an 
expert on forfeiture law who has written two treatises on the 
subject, said reform has begun across the country. Sen. Douglas Henry 
of Tennessee said he was concerned to learn at the conference that 
according to his state's and federal forfeiture law property can be 
taken without a conviction. He said he plans to ask for an immediate 
examination of his state's law. Sen. Yvonne Miller from Virginia said 
she was going to send her state's forfeiture statute to a number of 
outside agencies such as the Legal Defense Fund and the National 
Association for the Advancement of Colored People for examination. 
"I'm horrified by what I hear," said Miller, who has been in the 
Virginia Legislature for 16 years. "This is legalized extortion." 
Sen. Jim Hill from Arkansas said he had asked Kessler to examine his 
forfeiture law to look for loopholes that could be amended. But 
Dembrow said he believed only Congress could stop the hand-off 
between state and local law enforcement. He said he has asked Wiggins 
to help him formulate a policy statement asking Congress to help 
determine who should benefit from forfeited drug money and how state 
and federal forfeitures can be separated. That policy would be voted 
on next summer at the Southern Legislative Conference annual meeting. 
Dembrow referred to one of his constituents, a 64-year-old woman who 
is physically and developmentally disabled and may lose her home. Her 
children who no longer live there had used drugs. After local police 
searched her home for drugs several times but found only a small 
quantity, they reported it to the U.S. attorney because they couldn't 
charge her with a crime.

Maryland law requires a conviction before someone's home can be 
taken. The federal government initiated forfeiture proceedings 
against the property, which has been in the woman's family for more 
than 100 years. "That is a real heartbreak of an example of what is 
going on here," Dembrow said. He said he will look into the case. 
Forfeiture has become an issue this year in a number of other states.

Just this month, Utah and Oregon voters passed forfeiture initiatives 
redirecting seized money away from police.

A similar initiative failed in Massachusetts. In California, the 
Legislature passed a forfeiture reform bill in August, but it was 
vetoed by Gov. Gray Davis. In Kansas and Missouri, reform bills will 
be considered in the next session.

Southern Legislative Conference: Alabama, Arkansas, Florida, Georgia, 
Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, 
Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia
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MAP posted-by: Kirk Bauer