Drug Abuse

6. Forfeiture

(a) State criminal forfeiture provisions should be strengthened as avenues for curtailing drug trafficking.
(b) A significant portion of the revenues produced by federal and state civil and criminal forfeiture provisions should be specifically allocated to supplement alcohol and other drug abuse enforcement, prevention, intervention, treatment and research programs, especially for minors.

Background
The concept of forfeiture can be traced to the Book of Exodus in the Old Testament.125 It has been defined by our modern courts as the "divestiture (to the sovereign) without compensation of property used in a manner contrary to the laws of the sovereign."126 Forfeiture provisions are critical for two major reasons: 1) helping to curb drug trafficking by removing the implements of the crimes and taking the profits; and 2) raising revenue for drug abuse enforcement, treatment, prevention and education activities.' 27

Forfeiture statutes can either be civil or criminal. A civil forfeiture statute is a proceeding in rem, where the property is the defendant.128 A criminal forfeiture statute, on the other hand, requires a criminal conviction for the underlying crime before the fruits and implements of that crime can be forfeited.I29

Before the forfeiture of money or property can be required, procedures must occur to insure that constitutional due process requirements are satisfied. In a civil forfeiture proceeding, the focus is on the use of the property, not the motive of the individual.13° It is an in rem proceeding: the property is the defendant.131 No conviction of the person who used the property is required because the personal guilt of the individual is not at issue.I32 The government need only prove that it has reasonable grounds for believing that the property was connected to illegal activity.133 In a criminal forfeiture proceeding, there must be a conviction for the underlying crime before the tools of that crime can be forfeited to the government.I34 The standard of proof in a criminal forfeiture proceeding is the higher standard of proof beyond a reasonable doubt to believe that the property was connected to criminal activity.I35

If the participants in drug-related criminal activity can be deprived of their assets, it follows that the incidence and extent of drug trafficking will lessen.136 If the state forfeiture statutes are amended to include civil forfeiture, the burden of proof for the government in civil cases would be reduced and forfeitures would be sustained more easily. I 37

Fourteen states and the District of Columbia have made special provisions in their civil and/or criminal forfeiture provisions for the disbursement of forfeited money and assets as a result of drug-related activity. These states include: Alabama, Alaska, California, District of Columbia, Florida, Illinois, Indiana, Michigan, Minnesota, North Carolina, Oklahoma, Oregon, South Carolina, Tennessee and Washington. I 38

Federal legislation governing controlled substances contains both civil and criminal forfeiture provisions. In 1970 Congress enacted two major pieces of legislation designed to curb drug trafficking: Racketeer Influence and Corrupt Organizations Statute (RIC0)139 and the Drug Abuse Prevention and Control Act of 1970 (Controlled Substances Act).140 Each act contains a criminal forfeiture provision141 which requires forfeiture of illegally ensued property142 when the user has been convicted of the underlying crime.143

The Comprehensive Crime Control Act Amendments of 1984144 have further expanded the forfeiture provisions of RICO and the Controlled Substances Act to now include, inter alia, a funding mechanism to permit the use of forfeited proceeds to defray the escalating administrative costs in pursuing forfeitures.146 A thorough understanding of the concept of forfeiture as it relates to the objectives stated above -- deterring drug activity and raising revenue -- requires a discussion of the state and federal statutory schemes, specifically: 1) Uniform Controlled Substances Act; 2) Model Forfeiture of Drug Profits Act; 3) anti-racketeering statutes; and 4) Comprehensive Crime Control Act Amendments of 1984.

1. Uniform Controlled Substance Act

The Uniform Controlled Substances Act was drafted by the National Conference of Commissioners on Uniform State Laws and approved by that body in 1970.146 The Act was drafted "to achieve uniformity between the laws of the several States and those of the Federal government," and to provide "an interlocking trellis of Federal and State law to enable zovernment at all levels to control more effectively the drug abuse problem."14/

The drafting of the Act came on the heels of the enactment of the "Controlled Substances Act"148 which enabled the states to update and revise their own controlled substances laws.149 Allb but two states, New Hampshire and Vermont,I50 have adopted the Uniform Controlled Substances Act.151

2. Model Forfeiture of Drug Profits Act

The Model Forfeiture of Drug Profits Act (Model Act) was drafted by the Drug Enforcement Administration, U.S. Department of Justice in January 1981.152 The Model Act is based on Title 21, Section 881(a)(6) of the United States Code, which is the federal civil forfeiture statute. The Model Act was deemed necessary after passage of the 1978 amendments153 to the Comprehensive Drug Abuse Prevention and Control Act of 1970 expanded the civil forfeiture provision to include the forfeiture of illegally accumulated profits of criminal activity.I54 Prior to the amendment, only the tools of criminal activity were required to be forfeited. The new 1978 amendment greatly expanded the weapons that could be used to attack organized crime.I55 The Model Act, which amends the civil forfeiture section of the Uniform Controlled Substances Act to conform to 1978 civil forfeiture amendments,I56 has been enacted by forty-eight states, the District of Columbia, Puerto Rico, Guam and the Virgin Islands.157

3. Anti-Racketeering Statutes

Twenty-two states and the Commonwealth of Puerto Rico158 have adopted anti-racketeering statutes of their own in the wake of the enactment of federal RIC0.159 Federal RICO, by its own terms, is not preemptive.I60 Section 904 of the Organized Crime Control Act of 1970 (of which RICO is one title), provides that "nothing in the [RICO] title shall supersede" any provision of state law "imposing criminal penalties of affording civil remedies in addition to those provided for in this title."16I

RICO was enacted by Congress to strengthen law enforcement weapons against criminal infiltration of legitimate businesses.I62 RICO provides for criminal penalties, civil remedies and a forfeiture provision designed to deprive racketeers of the benefits of their illegal activity.I63 Existing state RICO statutes resemble the federal law, but contain significant differences.I64

Proceeds from any forfeiture under Federal RICO are to be deposited into the Department of Justice Assets Forfeiture Fund.I65 The monies in this fund are in turn disbursed by the Attorney General for, inter alia, reimbursement for costs of the forfeiture proceedings.I66 No specific provisions are made for these monies to be allocated to the prevention of the drug-related crimes, treatment of those involved in the criminal activity or, in the case of drugs, the addicts themselves. Individual states may enact provisions in their own RICO statutes to create a fund from the proceeds of forfeiture actions which could in turn be used for drug abuse enforcement, treatment, prevention and education programs.

4. Comprehensive Crime Control Act Amendments of 1984

The 1984 Amendments167 established the Department of Justice Assets Forfeiture Fund,I68 into which is deposited "all amounts from the forfeiture of property under any law enforced or administered by the Department of Justice remaining after the payment of expenses for forfeiture and sale authorized by law."I° No provision is made for the disposition of these monies. To implement this recommendation, the Attorney General should, among other things, promulgate regulations which would allocate these monies to drug abuse enforcement, treatment, prevention and education programs.

The 1984 Amendments established the Customs Forfeiture Fund,I70 into which is deposited "all proceeds from the sale or other disposition of property forfeited under, and any currency or monetary instruments seized and forfeited under, the laws enforced or administered by the United States Customs Service."17I The statute is also silent as to the disposition of the monies beyond payment of the expenses of forfeiture proceedings and the payment of awards to informers. This recommendation further urges the United States Customs Service to promulgate regulations which would allocate a portion of this fund to drug enforcement, treatment, prevention, and education programs, particularly those programs impacting on youth substance abuse.

Chapter XIV of the Comprehensive Crime Control Act Amendments of 1984172 is the "Victims of Crime Assistance Fund of 1984."173 The monies in this fund come directly from convicted criminals or public donations.174 The Attorney General is authorized to make annual grants from this fund to the states for the purpose of compensating and providing services to victims of crime.175 The legislative intent contemplates the allocation of these monies to state victim assistance funds to be awarded to "community-based volunteer organizations of the kind that have pioneered the provision of services for victims of sexual assault, spouse abuse, and child abuse."176

While the Act does not specifically contemplate juvenile drug addicts as "victims," an analogy could be made that they are the victims of drug trafficking and that monies from this fund could be used for treatment programs. Because these annual grants go directly to the states, each state could redefine its statutory definition of victim to include juvenile alcohol and drug abusers in order to develop specific education and treatment programs targeted to this population.


I25 See MYERS & BRZOSTOWSKI, DRUG AGENT'S GUIDE TO FORFEITURE OF ASSETS 1 (Drug Enforcement Assistance Administration, 1981).

126 United States v. Eight Rhodesian Stone Statutes, 449 F. Supp. 193, 195 n. 1 (C.D. Cal. 1978).

I27This recommendation and report is not to be construed to support in any way the application of forfeiture to the issue of attorney's fees. It is the primary intent of this recommendation to create additional sources of revenue for treatment. The issue of forfeiture and attorney fees is so complex that it cannot be considered here and is being considered elsewhere in the ABA. The Defense Function Committee of the ABA Criminal Justice Section is conducting a survey to ascertain the extent to which federal prosecutors are using provisions enacted by the Comprehensive Crime Control Act of 1984 to seize and seek the forfeiture of fees paid to defense attorneys by defendants in drug and racketeering cases. In 1979-80 the Drug Enforcement Assistance Administration seized assets totaling nearly one-half its annual budget. See supra note 125, at 365.

I28Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931).

I29See MYERS & BRZOSTOWSKI, supra note 125.

130Comment, California Forfeiture Statute: A Means for Curbing Drug Trafficking, 15 Pac. L.J. 1035 (1984)

131"lid.

132Id. at 1036.

133Id.

I34Id. See also MYERS & BRZOSTOWSK1, supra note 125, at 10.

I35Id.

I36See supra note 125, at 364.

137 Id. at 15.

I38 Alabama: Ala. Code Sec. 20-2-93 (1984)(sell what is not to be destroyed; pay off all expenses; remaining to be divided among local, city, state and general fund) Alaska: Alaska Stat. Sec. 17.30.122 (1984)(destroy property harmful to public; pay expenses of proceedings; use for enforcement) California: Cal. Health & Safety Code Sec. 11489 (West 1985)(50% allocated to Department of Mental Health for primary prevention programs) District of Columbia: D.C. Code Ann. Sec. 25-144 (1984)(sell to pay expenses; balance of proceeds used to finance programs to rehabilitate drug addicts, educate citizens and prevent drug addiction) Florida: Fla Stat. Ann. Sec. 893.12 (West 1984)(to enforcernent agencies) Illinois: Ill Rev. Stat. ch. 56-1/2, Sec. 712, 1413, 1651 et. seq. and 2105 (1984)(12-1/2% paid to Juvenile Drug Abuse Fund - funding of programs and services for drug abuse treatment for juveniles, remaining amounts go to other programs and services for drug abuse treatment, prevention and education; 87-1/2% deposited in the Treasurer's office for drug enforcement)
Indiana: Ind. Code Ann. Sec. 16-6-8.5-5.1 (Burns 1983)(pay expenses; balance used for payment into the common school fund of the state) Michigan: Mich. Comp. Laws Ann. Sec. 333.7524 (West 1984-85)(until Oct. 1, 1985, 25% balance to be credited to Dept. of Public Health for substance abuse) Minnesota: Minn. Stat. Ann. Sec. 152.19 (West 1985)(balance to state drug abuse authority for distribution: one-half to hospital and drug treatment facilities for care and treatment, remainder to appropriate state agency) North Carolina: N.C. Gen. Stat. Sec. 90-112 (1981)(surplus to be paid to school fund of county in which drugs seized) Oklahoma: Okla. Stat. Ann. tit. 63, Sec. 2-503 (West 1984)(drug enforcement) Oregon: Or. Rev. Stat. S160.725 (1983)(general school fund) South Carolina: S.C. Code Ann. Sec. 44-53-580 (Law. Co-op 1985)(all fines used by Dept. of Mental Health for the treatment and rehabilitation of drug addicts) Tennessee: Tenn. Code Ann. Sec. 52-1443 (1983)(drug enforcement) Washington: Wash. Rev. Code Ann. 69.50.505 (1985)(50% in criminal justice training account).

13918 U.S.C. S. 1961 et seg. (1982).

140 21 U.S.C. S. 801 et seq. (1982).

141 18 U.S.C. S. 1962, 1963 (1982); 21 U.S.C. S. 848 (1982).

1421d.

14321 U.S.C. S. 881(a) (1982).

144Pub. L. No. 98-473, 98 Stat. 1837 (1984).

145s. Rep. No. 225, 98th Cong. 1st Sess. 6 (1984), reprinted in U.S. Code Cong. & Ad. News 195, 196.

146Unif. Controlled Substances Act S.101, 9 U.L.A. 197 (1970).

147Id., Prefatory Note at 188.

14821 U.S.C. S. 801 841 et seq. (1981).

149Unif. Controlled Substances Act, supra note 135.

150Id. at 98 (as amended 1984).

15IPuerto Rico, the Virgin Islands, Guam and the District of Columbia have all adopted the Uniform Controlled Substances Act.

I52See MYERS & BRZOSTOWSKI, supra note 125, at 363.

I53Pub. L. No. 95-633, 92 Stat. 3768 (1978).

15421 U.S.C. S. 881(a)(6) (1982).

155See MYERS & BRZOSTOWSKI, supra note 125, at 364.

156Unif. Controlled Substances Act Sec. 101, 9 U.L.A. 197 (as amended 1984).

157Id.

1585 Trade Reg. (CCH) 50,449.

159Racketeer Influence Corrupt Organizations, 18 U.S.C. 1961 et seq. (1982).

1601sig RICO" and "Little RICO's": An Overview, 2 RICO Litigation Rep. (RLR) 240 (Sept. 1984).

161Id. See also Chapter XXII of the Comprehensive Crime Con-Fro! Act Amendments of 1984, 98 Stat. 2192 (1984), which states in full:
SEC. 2201. Notwithstanding this or any other Act regulating labor-management relations, each State shall have the authority to enact and enforce, as part of a comprehensive statutory system to eliminate the threat of pervasive racketeering activity in an industry that is, or over time has been, affected by such activity, a provision of law that applies equally to employers, employees, and collective bargaining representatives, which provision of law governs service in any position in a local labor organization which acts or seeks to act in that State as a collective bargaining representatives pursuant to the National Labor Relations Act, in the industry that is subject to that program.

162see "Big RICO" and "Little RICO's", supra note 160.

163The 1984 Amendments to the Forfeiture Provisions of RICO, 1 R.L.R. 586 (Jan. 1985).

164"Big RICO" and "Little Rico's," supra note 160.

I65Comp. Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2052 (1984).

1661d.

167Id. at Sec. 1837.

168Id. at Sec. 1837, 2052.

169Id. at Sec. 310.

I70Id. at Sec. 2054.

171Id.

172Id. at S. 2170.

1731d.

174Id. at S. 2170.

I75Supra note 145, at 8.

176Id. at 437.

< Prev		Next >