Mandated morality leads to legalized theft - Comprehensive Crime Control Act - Column

USA Today (Society for the Advancement of Education), March, 1994 by Jeff A. Schnepper

DRUG PHOBIA has taken over our society. Each year, Federal and local governments spend billions of dollars in a failing attempt to deny certain controlled substances to our populace. Note that I said controlled substances, not mind-altering drugs. Alcohol permeates our culture and Valium is available legally and easily to any suburban housewife with a headache and a friendly doctor.

The U.S. tried to control drugs once before in this century. We called it Prohibition, and it was a dismal failure. Its existence, however, provided the ways and means for organized crime to finance its explosive growth.

The same process is being repeated today, but instead of being called crime syndicates, they are labeled cartels. Where newspapers once headlined gang slayings and the killing of innocent people in their crossfire, today's newspapers cry and bemoan the slaughter of children in inner-city neighborhoods who fall victim to drug wars on their streets. The only things that have changed are the sophistication of the killing machines and the names of the drugs being sold.

Fear of drugs has denied marijuana to relieve the pain of those dying of cancer. Are lawmakers concerned that they may become psychologically addicted before they die or more so with publicly exposing the moral hypocrisy of "Reefer Madness" mania? Can the nation be so shallow that it prefers pain to tolerance. Are religious institutions so unstable and insecure that they require legal prohibition, rather than moral persuasion?

The fight against drugs, rather than drugs themselves, has bankrupted local and Federal budgets. More than 90% of crime is drug-related. This means that over 90% of prisons are filled with those incarcerated for drug crimes. Judicial systems and law enforcement agencies are drowning in a flood of drug-related activities. Public safety, personal security, and civil liberties have been sacrificed on the alter of zero tolerance.

In 1984, the Comprehensive Crime Control Act was enacted to broaden the Federal powers for seizure of assets in civil cases. In civil forfeitures, it is property, rather than a person, that is considered in violation of the law. Prosecutors only need show probable cause that the property was purchased from the proceeds of a crime or could have been instrumental in committing a crime. The act also created the Asset Forfeiture Funds. The Justice Department uses this account to collect and distribute proceeds from successful forfeiture actions by Federal agencies. The fund receives Congressional appropriations to cover law enforcement and property management expenses.

From 1985 to 1992, annual net deposits into the fund increased from $27,000,000 to $531,000,000. The cumulative total for this period was $2,700,000,000, with about another $1,500,000,000 in the pipeline.

According to Scott Bullock, a staff attorney for the Institute for Justice, the Washington-based nonprofit legal foundation, if someone calls from a car phone to make an illegal drug deal or sports bet and Federal agents intercept the call, they can take the car and phone. Moreover, if Federal agents find marijuana in a house, it and all contents also are potentially subject to forfeiture. In a 1974 decision, Calero-toledo v. Pearson Yacht Leasing Company, the Supreme Court held that due process requirements do not necessarily apply to personal property, since it can be concealed or destroyed. Property owners can lose their assets without even being aware of illegal activity on their premises. In addition, subsequent as well as current owners can be liable.

Most importantly, the accused citizen, not the government, must demonstrate a preponderance of the evidence in a forfeiture. In other words, such individuals must prove that they are not guilty. Moreover, even if the government returns the property, it does not have to pay the owner for legal expenses, lost salary and benefits, or property damage - win or lose in court.

All 50 states have enacted their own civil forfeiture laws, with several having passed criminal forfeiture laws as well. For example, in 1991, $56,000,000 in assets were forfeited in California, with police and prosecutors keeping about 90% of each seizure.

The huge monetary value of forfeitures has created a great temptation for Federal and state enforcement agencies to target assets, rather than criminal activities. Since 1986, Justice Department officials have transferred more than $1,000,000,000 in cash and property seizures to over 3,000 state and local agencies. According to Paul Craig Roberts of the CATO Institute, "increasing taxes is unpopular. But through forfeitures, government can raise revenues and appear as moral crusaders."

Thankfully for the nation, Bill Clinton did not inhale; otherwise, the White House potentially might be on the auction block. Surgeon General Joycelyn Elders has suggested that legalizing drugs could help make the streets safer. The mayor of Baltimore also has recommended that course of action. If drugs were legal - and taxed - the Federal deficit could be eliminated in two years. Allow the drugs to be sold by prescription or, like alcohol, through licensed retail outlets. As a first step, at the minimum, drugs should be decriminalized. What that means is that civil fines, rather than criminal incarceration, would be the penalty for drug activity. In either case, the massive institutional expenditures made to prosecute drug cases no longer would be necessary. Dollars would be freed up to combat true criminal activity or for drug treatment or substance abuse prevention. In any case, the current hysterical hypocrisy no longer can continue.