Making the same old mistakes on asset forfeiture: Profit motive has no place in law enforcement strategy

Back during the fight to shut down Texas' network of Tulia-style drug task forces, one of the key revelations that discredited those now-defunct pseudo-agencies, and which prompted a new rule at the Department of Public Safety narcotics division, was that many were focusing their traffic interdiction efforts almost exclusively on southbound lanes, ignoring drugs going north in hopes of snagging more cash, of which they'd get to keep a portion under asset forfeiture laws.

At the time that tactic was seen as discrediting the task forces, and DPS created a rule requiring task forces to spend equal time in the north and southbound lanes, a stipulation that caused many of them not to accept DPS supervision and ultimately led to Governor Perry's decision to de-fund the lot of them, shifting federal grants that used to pay for them to other priorities from drug courts to border security.

Now, though, pretty much that exact same strategy is being suggested as a statewide revenue generating scheme. The Statesman's Mike Ward reported ("Senators, DPS eye millions in seized drug money," Feb. 22):

DPS Director Steve McCraw had just testified that federal officials now estimate that as much as $28 billion a year in cash goes from the United States across the border into Mexico.

Two-thirds of that goes through Texas, he estimated.

"That's the Medicaid budget," Ogden responded after hearing the $28 billion figure.

Since 2006, McCraw said, $140 million in drug cash has been seized along the Texas border, most from trucks and other vehicles headed into Mexico.

With additional officers and checkpoints to examine Mexico-bound vehicles, he said, Texas seizures could increase by as much as 12 percent.

Currently, a percentage of the seized money goes to prosecutors, and McCraw said another percentage — perhaps all the remaining amount — goes into state coffers, depending on whether federal police agencies are involved in the bust.

But Monday's discussion was the first time that additional enforcement has been tied to its success in seizing additional cash, a connection that other states have been discussing to address their budget crises in recent months.

Ogden questioned whether, if the state earmarks additional money to target drug cash seizures, the cost might come out equal to the state's share of what was seized.

"If we're going to spend $50 million we ought to get some credit for this in the budget," he said.

He instructed representatives from the state comptroller's office to investigate how much the state might legally lay claim to in a two-year period, so it could be used in creating a budget.

Other members of the committee indicated an interest in using a share of the forfeited cash, as well — even though Sen. Dan Patrick, R-Houston , echoed other sentiments when he said the suggestion was not to put DPS "on a sales commission" by funding it based on how much drug cash it seized.

Many of the Tulia-style drug task forces had essentially become complicit with drug traffickers, driven by the same motives on display at this Senate hearing. As a matter of macro-level strategy, they de-emphasized enforcement on northbound drugs so they could take a bigger cut of the southbound cash, or as Grits once put it, "living off asset-forfeiture income from traffic interdiction like pirates living off the spoils from plundered ships." (BTW, do you know the difference between a pirate and a "privateer"?)

So instead of having a vested interest in reducing drug trafficking, the larger concern for some task forces was securing their share of the profits, which in many cases was used as local matching funds for re-upping their federal grants. (See a public policy report I wrote on drug-task force highway interdiction back in 2004.) This amounted to tacit (and occasionally explicit) complicity with the drug traffickers, and the task forces' failure to comply with DPS rules on that score was a big reason why the Governor de-funded them in 2006. But these are lessons, apparently, that Texans must learn over and over again: The aims of law enforcement become corrupted when government's priority is maximizing revenue. (Speaking of which, one of the USDOJ budget cutting strategies suggested by the Obama Administration was "Sharing less of the proceeds from property confiscated from criminals with state and local authorities.")

Ironically, on Tuesday the Senate Criminal Justice Committee will hear legislation by Chairman John Whitmire aimed at restricting the ability of local District Attorneys to manipulate their prosecutorial functions to maximize asset forfeiture income. (See related Grits posts rounded up here.) But the state is considering building southbound border checkpoints (as opposed to the northbound ones aimed at illegal immigrants and drugs) for the exact same reasons - to skew law enforcement priorities toward activities that maximize revenue instead of reduce drug trafficking. I don't see how it's much different, or more defensible, than what the drug task forces were doing.