Officer Ted Nelson has recently undergone a slight change in his career. The police officer formerly in charge of training Michigan’s law enforcement on civil asset forfeiture in the 1980s, Ted is now a member of Law Enforcement Against Prohibition (LEAP), a non-profit group of former police officers and judges who oppose the drug war. Ted agreed to speak to me on behalf of himself; his opinions do not necessarily represent those of LEAP.
TLO: Ted, you were in charge of training Michigan’s law enforcement about how to use civil asset forfeiture back in the 1980s. Would you mind telling me a bit about that?
I was on a narcotics enforcement team at the time and was very interested in asset forfeiture and became the instructor for all the state police in Michigan to learn about it. At the time, I thought it was a great tool for law enforcement in the war on drugs. It was a way to go after assets obtained illegally by the sale of illegal drugs, and it seemed to be a valid use of police power.
Asset forfeiture puts the burden of proof onto the victim, the person who has assets taken. It can be hard to launch a defense if you have your cash seized. I remember a case years ago where a trooper found a briefcase with $450,000 in cash. They took it assuming it was drug related, with no proof. They brought it to me since I was in charge of forfeiture and they had me look into it. I found no connection and told them to return it immediately.
The money can be used to enhance narcotics enforcement. This is both very vague and very broad. Taking someone’s house over raising seedlings will breed ill-will and will ruin a forfeiture law that was working fine. Sometimes police stretch a law so far that it gets taken away.
I was involved in federal seizures, and those seizures share the proceeds with the states who help. Adopted forfeiture is what the Feds used to do, where locals would bring the case to the Feds to have them handle the paperwork. Eric Holder stopped this practice back in January before leaving office. There used to be a threshold on how much a state could be take, but the feds had no limit. I am not personally against asset forfeiture as a tool but I saw two main problems with it.
Problem 1: When you don’t know everything about a law you tend to overstretch the intent of that law. Drug teams would take lots of assets from homes, any items of value, electronics; all taken under forfeiture law. These would be used as a bargaining chip to plea bargain in the criminal case: ‘we’ll give you your TV back if you plead guilty.’ That wasn’t the intent. The intent was to take the goods obtained from drug sales only. Over time, this became ‘let’s take everything and sort it out later’ approach. I could tell back in the 80s that this would get the forfeiture law in trouble, but it’s hard to convince people to fix something before it is broken.
Problem 2: Kids going to Florida for spring break with a small amount of drugs and lots of cash would be stopped by cops and have their vehicle and cash seized if they found any drugs. These kids would then get stranded in far off states while on vacation and lose lots of money. Police took advantage of that. And it still happens today; there are officers out there who stretch it beyond its intent. There needs to be some kind of review, prosecutorial or administrative, something to create objectivity and oversight. There’s no oversight.
TLO: Regarding ways to reform asset forfeiture, do you feel this is something that needs to come from the top and be implemented top-down, or should this come from the bottom with police forces around the country implementing policies?
It is very discretionary, almost entirely up to the officer. If someone has a joint, police will take the money assuming they won’t challenge it in court. People get the perception from issues like this that police are stealing from people, even though they are not; they are filing paperwork for it. Asset forfeiture and the war on drugs create more distrust than is already there.
You can get very old waiting for change from the federal government. Marijuana laws aren’t being changed by the federal government; that is being done by states and cities. I don’t have any optimistic view that any federal agency or Congress will step up to make this an issue. It shows to me a distrust in government. I think change is going to come through local and states, because they listen to the people.
The CARERS bill is a start. It appears to need to be done in phases, not one go. For my entire life, there was a drug war, but a few years ago I saw the states start legalizing and I said ‘this is how it will happen.’ The country will follow the states. I don’t think cannabis should be decriminalized, it should be legalized, regulated, and controlled; and so should all other drugs.
TLO: How do you feel about situations like Tehana, Texas where asset forfeiture is being abused in a racially biased way to rob and extort people of color while giving whites a pass?
They will ask them, ‘do you have any money/drugs?’ They use consent searches because they make less paperwork for [the officers], and they still score assets to buy things. It can be and has been abused; not all the time but enough to be concerned.
TLO: Neill Franklin has been a very outspoken in pointing out the role the drug war and asset forfeiture play in weakening community/police relations, leading to inflammatory situations like the Baltimore Uprising and Ferguson. Care to comment?
The consequences of the drug war reach out in many ways. It puts law enforcement into an altercation or arrest for drug crimes. It erodes the trust the public has in government because most people don’t feel drugs should be illegal. Police become viewed as an occupying force projecting morality onto the public. It creates an attitude of disrespect, and erodes the respect between police and the community. The drug war isn’t the only source [of distrust], but it is a major factor.