Could the Supreme Court’s Forfeiture Ruling Help End the Drug Wars?

Did the Supreme Court unanimously de-escalate the drug wars last month? The optimist in me says “yes,” and the historian in me agrees.

In Timbs v. Indiana, the Court ruled that the state could not seize and forfeit the plaintiff’s Land Rover as a result of his drug conviction. While this decision alone will not end “policing for profit,” it will subject state asset-forfeiture laws to unprecedented scrutiny. Michigan and South Carolina legislators immediately introduced bills to reform asset forfeiture, for example, and district attorneys in Alabama scrambled to show how their forfeitures are already transparent and constitutional.

State-level reforms could leave many law enforcement agencies with funding shortages, but could also restore public confidence. As some critics have pointed out, forfeiture subverts the democratic process by allowing for larger and more robustly outfitted police departments than taxpayers ever voted into existence.

If state-by-state reform of law enforcement methods over several years sounds super boring, then a complete history of the drug wars might not be for you. Because although we tend to organize our histories of drug control around federal legislation and the outsized personality of longtime federal drug troll Harry Anslinger, the truth is that the drug wars have always been conceived and prosecuted by state and local agencies.

These agencies, too, have always reaped the benefits of asset forfeiture. And the benefits have not been merely financial. Forfeiture has long played an important public-relations role and continues to do so. For example, this showpiece patrol vehicle “seized from drug dealers” was parked at my kids’ elementary school carnival this past autumn:

This kind of publicity has a long history. Police have always aimed to get public recognition for their clever asset seizures. Media reports were meant as warnings to would-be drug dealers and users, as in this 1934 feature photograph from the Los Angeles Times showing a police captain, three drug suspects, and a federal agent in front of a seized “expensive motorcar”:

This seizure and hundreds like it were brought about by a 1921 California law that enabled “any duly authorized peace officer” to seize any automobile used to carry morphine, cocaine, or opium; proceeds from the sale of the vehicle were to be divided between the local agency making the arrest and the state board of pharmacy. It wasn’t long until the state agents were choosing from the finest of the seized cars to drive themselves (a practice exuberantly copied by the federal prohibition apparatus during the 1930s).

The seizure of a celebrity’s automobile drew considerable press coverage, as when the Associated Press reported in 1950 that the state of California would auction off Billie Holiday’s “snazzy $5,000 Lincoln,” describing the “royal blue, specially built sedan, topped by a cream-colored leatherette top,” after she was convicted of heroin possession.

But even working stiffs could lose their cars to the drug wars over a modest amount of cannabis. In 1956, California agents exchanged letters about a working-class father in dire straits after his son was caught in possession of a marijuana cigarette while driving the family car. The car had been seized and forfeited, and then-attorney general Edmund “Pat” Brown would not intervene. Unfortunately, the kid didn’t have any valuable information to share with the state narcotics bureau that might lead agents to a bigger fish, so they hung his father out to dry.

Indeed, police and narcotics agents have frequently used the threat of seizing valuable property in excess of allowable fines to press low-level users into service as informants. They continue to use proceeds from forfeitures to pay for information and testimony, and for undercover drug buys.

These few examples concerning seized cars could be filled out rather handsomely with instances of other kinds of property seized—cash, land, airplanes—leaving aside the seizure and public destruction of drugs themselves and paraphernalia. In the early 1900s, seized drugs were not always destroyed but were often legally sold and the proceeds kept by drug enforcement agencies. The values of drug and paraphernalia forfeitures were proudly released to the media as evidence of just how much of the corrosive stuff had been kept off the streets.

Through asset forfeiture, the drug wars have paid for themselves. If the states undertake to reform asset forfeiture, they will be upsetting an unsavory aspect of law-enforcement culture that has been a century in the making, and that relies on the continued repression of recreational drug use.

So states should keep in mind: forfeiture has long provided not only funding but also publicity for the drug wars and coercion of drug defendants via extraordinary financial threats.

The states’ making access to the tools of forfeiture narrower should hobble some of these practices. So we can entertain the hope that the Supreme Court has set in motion a process that will knock some of the teeth out of drug control and, ultimately, restore decisions about expanding and funding law enforcement to the people.