Friday, January 11, 2013
David Thomas Gibson (University of California Hastings College of the Law) has posted Spreading the Wealth: Is Asset Forfeiture the Key to Enticing Local Agencies to Enforce Federal Drug Laws? (Hastings Constitutional Law Quarterly, Vol. 39, No. 2, 2012) on SSRN. Here is the abstract:
The federal government devotes a significant amount of its money and resources towards fighting what Richard Nixon termed “the war on drugs.” One of the most effective legal tools used to further this purpose is asset forfeiture, or the process by which the government seizes and gains title to property obtained through criminal activity or used to further a criminal conspiracy. Criminal asset forfeiture can be used against drug producers and traffickers to cripple their operations and claim their profits. This weapon can also be wielded in civil proceedings. For instance, in states implementing medical cannabis programs, personal property gained from or used for the sale of cannabis is subject to seizure due to the supremacy of federal laws prohibiting narcotics sales.
This note will address the ways in which asset forfeiture is and can be used to further federal drug policy goals while reducing the ever-increasing budget demands of those federal agencies responsible for enforcement. As written, the statutes can be used as a carrot or a stick to foster local enforcement of federal laws. Cities and counties can be fiscally rewarded or punished for their local enforcement regimes, especially in the case of cannabis. Cities such as Oakland, California, obtain hundreds of thousands of dollars per year from taxable medical cannabis sales. The state of California recently proposed legalizing cannabis for recreational use to generate a projected $1.4 billion in tax revenue. Whether these same asset forfeiture provisions apply to state and local governments that profit from the sale of medical cannabis has yet to be determined by the courts. Issues of sovereign immunity, federalism, and due process are heavily implicated. Although the use of asset forfeiture to incentivize state and local government action has been established as legally permissible, it has not yet been attempted on an organized large scale.