Eric Holder Helps Save the Constitution

It’s not possible to overstate the importance of a move Attorney General Eric Holder made Friday when it comes to restoring at least a semblance of the constitutional republic we all dreamed of before we became so preoccupied by the “Drug War.” It’s funny; we think we’re so much smarter than previous generations, but the last time we tried Prohibition, that generation figured out how stupid it was and passed a constitutional amendment to reverse it within a few years. This time, with all of our advanced knowledge and technology, we’ve been fighting a new version of Prohibition for more than a generation, and we don’t seem to even notice the damage it’s doing.

Well, Holder’s Justice Department (finally) gets it. On Friday, he signed an order barring state and local police from citing federal law to seize cash and property from anyone they accuse as a “drug dealer,” without so much as a warrant, charges, or even probable cause. These horrific, obviously unconstitutional laws have been on the books for decades, and they needed to go a long time ago.

The “Equitable Sharing” asset forfeiture program has been something of a cash cow for law enforcement agencies, and there was little to no oversight. According to a Washington Post investigation published in September, since the 9/11 terrorist attacks, police have seized more than $2.5 billion in cash from Americans without warrants or charges being brought, or even probable cause.  In all, state and local law enforcement has collected more than $3 billion in cash and other assets just since 2008.

Here’s an example from my personal experience. Back in the early 1990s, a friend of mine had a maid who was here (legally) from Jamaica. She was paid fairly well, worked her ass off, and she would sock away about half her pay in cash, and stash it in a lock box in her closet. Never did drugs; in fact, according to my friend, she rarely left the house. Every year, she would fly to Jamaica with about $15,000 cash and gave it to her family down there. One year, she was stopped in the security line at an airport, and the security people (pre-TSA) found the cash and called local police, who called the DEA. They took her money, gave her a receipt, insinuated that she was a drug dealer because, you know, lots of cash and a black Jamaican, right? They handed her a card – literally, a card – with instructions as to how to get her money back. She would have had to hire a lawyer, file suit and essentially prove that she didn’t commit a crime and that the money was obtained legally before she could get it back. They had all of her money; how was she supposed to do that, exactly?

That’s not America. At least, it shouldn’t be.

In America, according to our legal foundation the Constitution, a crime has to be committed and police are supposed to have “probable cause” to believe a crime was committed and that you commited it before they can even speak to you, let alone search you and confiscate your belongings. For them to be able to assume you “must be a drug dealer” because you’re going to Jamaica with a lot of cash is not a basis for confiscation of nearly everything this woman owned.

For many years, Equitable Sharing enabled local and state police to make seizures and then have a federal agency, such as the DEA or the FBI, “adopt” it. Doing this allowed them to keep up to 80 percent of the proceeds That means, if a police agency decided someone might be a drug dealer, police would simply take whatever they wanted, inform the FBI, and hand the feds about 20 percent of the proceeds,. No warrants had to be obtained, no charges had to be brought; it was a gold mine.

Now, that’s over. Finally.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement.

There are some exceptions, of course. There always are. Police can still confiscate illegal guns and explosives, and those accused of child pornography can still have assets confiscated. Still wrong, but that’s just a small portion of the total. This move actually eliminates virtually all asset seizures made by state and local law enforcement agencies on behalf of the program.

That doesn’t mean this is all over. Police will be able to continue to do this sort of thing under state laws, although eliminating Equitable Sharing from the equation makes things much more difficult for them. The program was easy, and perhaps ironically, many states actually maintain higher standards of proof for forfeitures than the feds. Also, many states don’t allow police to keep funds, and instead require that seized proceeds to go into the general fund. That takes the greed factor out of the equation in most cases.

If you want to know how so many local police agents became de facto armies, this program had a lot to do with that. Police used the money to buy bigger military-style weapons, luxury cars and tanks. There is a lot of suspicion that not all of the money seized was accounted for, meaning a lot of police may have cashed in.

The Drug War has to end, and we need to get back to becoming the America we should be. The Constitution is supposed to protect us from government, yet too often we seem too willing to compromise on that under the guise of government protection.

What Holder did was a great first step toward living in a constitutional republic again.

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