Kent Volkmer, Civil Asset Forfeiture, and the War on Drugs

     Civil Asset Forfeiture has been and will continue to be a significant factor in the erosion of justice in American society. Nonetheless, prosecutors and law enforcement agencies have lobbied ceaselessly to retain these laws in their most virulent form. Case in point is this recent article about Kent Volkmer's reaction to the passage of HB2477, which mitigated some of the worst features of Civil Asset Forfeiture in Arizona.

"Prosecutors must now prove before a judge there is 'clear and convincing evidence' to seize criminal assets, a more rigorous standard than the previous 'preponderance of the evidence' measure. Volkmer compared the former standard to tipping the scales of justice by at least 51 percent, and said the new standard raises that threshold to 75 percent."

      First of all, 75 percent of what?
       Secondly, if Civil Asset Forfeiture in its most extreme form tips the scales of justice "51 percent," then the scales of justice must be terribly out of kilter. A scale is supposed to be set at zero. Can't quite understand the analogy.

"It won’t have much impact on his office, he said, because his staff already aims to meet the 'clear and convincing' standard."

     It may sound reassuring to some that they "aim" to meet the "clear and convincing standard," but remember: there are no metrics for "aiming!"

 "But raising that legal burden does lower a barrier for drug cartels to do business in Arizona, according to Volkmer. He compared it to any other type of business decision; when a barrier to entry is lowered, then the more activity there will be in the market."

     Many barriers to entry in the illegal drug market have been erected, yet the "War on Drugs" goes on and on. How many barriers and of what kind would have to be erected in order to win the War on Drugs? Meanwhile, our justice system has begun to resemble that of a banana republic.
     What Volkmer either forgot, doesn't know, or purposely didn't mention is that barriers can be surmounted if demand is great enough. All that has to happen for a market to exist is for the supply curve to intersect with the demand curve at some point. If the reward for supplying the demand is great enough, suppliers will come into existence.
     Given that the War on Drugs has failed so far, we can assume that the barriers to market entry haven't been great enough.
     Civil Asset Forfeiture has been a leading tactic in the War on Drugs since the 1980s. Politicians, prosecutors, and law enforcement agencies revived the idea (which had previously been used during Prohibition) as a way to strengthen the barriers to illegal drug market access. Funny thing was that they arranged for the seized assets to fall under the control of law enforcement and prosecutors' offices. In fact, their range of control was such that they could be said to be the new owners of these assets. The new legislation does little to curb the incentive for corruption, as Volkmer himself admitted.
     If people wanted to help drug-users not to use drugs, this is obviously not the way to do it. The War on Drugs is the way to strengthen governmental and bureaucratic power in society at the expense of the taxpayer and the rights of the citizen.
     Legislation is the problem, not the solution.

Out of the Woods on RICO Seizure in AZ?

The ABC15 website carried an article about the signing into law of HB2477. When signing the bill, Gov. Ducey stated:

"Reforms have been needed in this area for some time. As public servants, we are entrusted with not only protecting public safety, but also the rights guaranteed to every citizen of this great state and nation, . . .Today’s important legislation strikes an appropriate balance between enabling law enforcement to do their jobs while upholding civil liberties. I commend Representative Eddie Farnsworth for his work on this legislation, and lawmakers on both sides of the aisle for supporting it. This bill will allow law enforcement to take appropriate action against drug cartels and other criminal enterprises, while ensuring citizens do not have their property seized without proper due process.”

The article went on to explain:

"The new law strengthens the burden of proof required before a person’s money or property can be seized from a 'preponderance of the evidence' to 'clear and convincing evidence.' In addition, the law will allow property owners to recoup their legal fees if they prevail in getting their property or money back. Also, the legislation adds another layer of oversight by requiring prosecutors to receive approval from their county board of supervisors before RICO funds can be disbursed."

The struggle against asset forfeiture laws has been waged almost single-handedly by the libertarian Institute for Justice. Concerning the passage of HB2477, the IJ had this to say:

"Today, Arizona Governor Doug Ducey signed bipartisan legislation to meaningfully reform Arizona civil forfeiture laws. . . Arizona’s civil forfeiture maze is the greatest threat to property rights and due process today,” explained Institute for Justice Senior Attorney Paul Avelar. “HB 2477 makes incremental but important reforms to Arizona’s forfeiture laws to protect innocent property owners and ensure that government powers are not abused.”

    And: 

"Arizona has some of the worst civil forfeiture laws in the nation, and we applaud the Arizona Governor and Legislature for curbing many abusive practices,” noted IJ Attorney Keith Diggs. 'But we will keep fighting until Arizona’s rigged system is completely abolished, once and for all.'”

     The Institute for Justice intends to continue its suit against Arizona, as not all of the abuses of the current law have been remedied:

   

"In Arizona, owners have only 30 days to either petition the prosecutor to reconsider the forfeiture or ask permission to go to court to fight back. But this process requires owners to file a sophisticated legal document—often without the benefit of a lawyer. If they miss the 30-day window or mess up the document, they lose their property forever. And most of the time, it is the prosecutor—not a judge—who decides what to give back and what to keep."

     These laws were bad from their very inception---tools in the War on Drugs, a "war" against people exercising their natural right to control their own bodies.

     The concept of justice implies that the rules should be the same for everyone. There shouldn't be special rules for persons suspected of being linked to a "drug cartel or other criminal organization." And it certainly is ironic that these drug cartels and other criminal organizations could only have come into existence due to the incentives created by previous misguided legislation.

     The passage of RICO seizure laws hasn't produced a definitive victory in the War on Drugs; instead they've given rise to rampant police corruption as law enforcement agencies have used the laws to scam even more money and resources out of unsuspecting citizens. 

     County prosecutors and law enforcement agencies, supposedly constituted to protect their citizens, were the biggest lobbyists against any mitigation of the RICO laws which should be a sobering thought for those who think that government is the solution and not the problem.