Is Civil Asset Forfeiture Preventing the US from Implementing Evidence-Based Drug Policies?

The War on Drugs was a disaster from the start. Since the 1980s, government-funded studies have consistently found that our approach to drug policy was ineffective, and yet we are still putting drug users in jails and prisons.


We have plenty of evidence now – evidence that the United State’s approach of incarceration and military-style intervention is not effective and evidence that decriminalization and harm-reduction models are effective.

So, why are we continuing down the same path decades later? It’s a complex issue and there are more reasons than one, but the biggest obstacle to positive change is civil asset forfeiture.

Our government is raking in more than a billion dollars every year from asset forfeitures – legal and illegal – that are inextricably connected to the drug war. Decriminalize drug use and possession and the spicket gets turned off – see the problem?

The War on Drugs – We Knew it Wasn’t Working Decades Ago

Lacey Thompson points out on that not only is the drug war a failure, but the government has known that it was a failure at least since the 1980s when a series of government-sponsored studies found that:

  • Use of the US military to combat drug traffickers was ineffective and may have increased the cartels’ profits;
  • Law enforcement is not an effective approach to drug use in the US – in fact, drug treatment is 23 times more effective than law enforcement; and
  • The US government has consistently ignored the results of studies on the effectiveness (or ineffectiveness) of our approach to drug use and drug trafficking.

The government has known that our approach wasn’t working, but most ordinary people probably have no idea – most people don’t spend their time reading reports and studies on drug policy.

So, for decades the government has continued putting drug users in prison, seizing their property and assets (and the property and assets of people who are not drug users or sellers), while advocating for harsher penalties and mandatory minimums for drug offenders.

When we realized, 30 years ago or more, that our approach was not working, why didn’t we try something different? Why aren’t we trying something different now?

What’s Going on in Portugal?

People are resistant to change. Overall, the culture in the US as it relates to drug use and addiction is one of disdain and demonization.

Drug users are bad, morally flawed people. They need to be punished, and they need to be separated from the rest of us so that they don’t hurt us. Right?

I mean, assuming you don’t have a close friend or person in your family struggling with addiction. Or you yourself are not struggling with addiction. Then, your perspective might be a bit different…

Portugal had a similar problem. In the latter part of the 20th century, addiction took a huge toll on Portugal’s population. At one point, one in ten Portuguese citizens were using heroin – not just junkies hiding in a back alley, but people from all social classes.

In 2001, Portugal took the novel step of decriminalizing the use and possession of all illicit drugs. When they did:

  • The opioid crisis stabilized;
  • Drug use declined;
  • HIV infections declined;
  • Hepatitis infections declined;
  • Drug-related crimes declined; and
  • Incarceration rates declined.

People who are caught with personal-use amounts of drugs may be given a warning or a fine. Or, they may be required to appear before a three-member commission with a doctor, an attorney, and a social worker to discuss treatment options and what services are available to them.

All indications are a go – decriminalization with a focus on harm reduction, prevention, and treatment works.

So why aren’t we doing it?

Why is the United States Continuing Its War on People?

I can think of plenty of reasons why the United States is still waging war on drug addicts. For one, our society is *addicted* to forcing our morals on others. Remember? Drug addicts are bad, morally flawed people who must be punished.

The one stumbling block that dwarfs all others, however, is civil asset forfeiture.

Civil Asset Forfeiture – the Golden Goose

The US Department of Justice (DOJ) identifies $1,379,046,940 (that’s one billion, 379 million, 46 thousand, 940 dollars for just one year) that were deposited to the asset forfeiture fund in 2018, with a break-down by state.

$4,087,845 was deposited in forfeitures from South Carolina.

Those numbers don’t reflect the total amount of forfeitures, though. The document contains a clear disclaimer:

These figures represent official accounting transactions. They do not reflect total forfeiture activity for any jurisdiction.

So, how much money is the government seizing from US citizens? We don’t know. It’s more than $1,379,046,940 in a single year, though.

How much are individual municipalities and state agencies seizing from citizens? Again, we don’t know.

The Money is Not Just Coming from Drug Traffickers

What is the rationale for civil asset forfeiture?

Law enforcement will tell you that seizing money, property, vehicles, and other assets from drug traffickers is an essential tool in fighting crime. It is true that it is an effective tool – when smuggling rings, cartels, or other organized crime is the target.

But the target is more often ordinary people, some of whom have no connection to the drug trade:

  • Police seize money from motorists when there are no drugs in their vehicle;
  • Police seize money from motorists when they have small amounts of drugs in their vehicle;
  • Police seize money from people when someone else nearby is found in possession of drugs;
  • Police seize small amounts of money from people knowing that the person cannot afford to challenge it in court.

Police are robbing citizens on the roadside – not drug smugglers, cartels, or organized crime, but ordinary people. If you have cash on you, police think it is fair game for forfeiture. Why would someone be carrying cash, anyway? (If there’s no indication that it is connected to crime, it’s none of your business…)

Law Enforcement is Addicted to Forfeitures

Law enforcement is funded by civil asset forfeitures.

Agencies also said funding for their work would be imperiled without the profit from this tool. Clemson Police Chief Jimmy Dixon said losing those profits could shut down his agency’s K-9 unit entirely. Undercover narcotics operations overall would suffer, Dixon said, citing limits on the department’s operating budget.

Asset forfeitures are a game – a competition – for many law enforcement officers. It’s a bit like fishing… and the officers who bring in the most cash are rewarded and praised by their agencies.

If we are ever going to effectively address the addiction problem that the US faces, we first must address law enforcement’s addiction to civil asset forfeiture – law enforcement is not going to let go of billions of dollars in funding just because Mary can’t pay her rent this month.

What’s the Answer?

Stop civil asset forfeiture unless the target is a legit drug trafficker who is using the assets to further crime. (If a person has a joint in their pocket, the $800 in their wallet is probably not being used to further drug trafficking…)

Decriminalize possession and useof all drugs – stop hurting users and their families and focus on the traffickers. Replace the criminal laws with community support systems, prevention programs, and treatment programs.

Learn about civil asset forfeiture, harm reduction, and the effects of decriminalization, and educate others about it. We aren’t going to see change until Americans understand the issues and care about them.

Criminal Defense and Asset Forfeiture Attorney in Charleston, SC

If you are a victim of armed robbery by the police without probable cause, if you can document where your money or property came from, or if you were an innocent third-party owner of seized property, Charleston, SC asset forfeiture lawyer Grant B. Smaldone may be able to help you by answering the government’s forfeiture complaint with counterclaims or by filing a civil rights lawsuit against the agency that took your property.

Call now at (843) 808-2100 or fill out our easy contact form to schedule a free consultation.