Monthly Archives: October 2014

The Importance of Eliminating the Stigma Surrounding Mental Illness By Christopher Becker

The Importance of Eliminating the Stigma Surrounding Mental Illness

By Christopher Becker 

Earlier this year, President Barack Obama declared the month of May as National Mental Health Awareness Month.[1] However, mental illness in society is sorely misunderstood[2], and the path to increased understanding and treatment is one littered with obstacles and impediments such as implementing proper health care reform[3] and decreasing the stigma and negativity surrounding the diagnosis of a mental illness.[4] I am not contending this is a novel idea or even one that has not been discussed by a great number of individuals. However, I believe that as many voices saying in as many ways possible that increased awareness and understanding of mental health issues is instrumental can help raise the awareness necessary to compel change. It is my hope that in the coming years those who suffer will not feel alienated, discriminated against, or be dissuaded from seeking help.

According to the latest data posted by the National Institute of Mental Health on behalf of the Substance Abuse and Mental Health Services Administration (SAMHSA) on October 8, 2014[5], 51.2 million adults, or some 22.5 percent of the population, suffer from what SAMHSA calls mental disorders.[6] These disorders can be organized into major categories such as Mood Disorders (which include illnesses such as Bipolar I Disorder and Major Depressive Disorder), Anxiety Disorders (including Post Traumatic Stress Disorder and Obsessive Compulsive Disorder), Substance Abuse Disorders, Eating Disorders, Adjustment Disorders, Impulse Control Disorders, and Expressions of Psychotic Symptoms.[7] Unfortunately, only roughly one-third of people with these disorders seek some type of treatment.[8] The stark contrast between the prevalence of these disorders and the frequency of treatment is befuddling, and we are responsible for answering two important questions: why does this disparity between incidences of mental health disorders and treatment exist and how can we fix them?

There are numerous explanations offered for the startling statistics concerning the under-treatment of mental health disorders. Representative Timothy Murphy, a Republican from Pennsylvania and only one of three psychologists in Congress[9], explained during a speech in support of the Helping Families in Mental Health Crisis Act that fewer resources, a shortage of trained professionals, imprudently spent federal money including underfunding of the National Institute of Mental Health, and poor communication between primary health care providers and those who are trained to help patients combat mental illness specifically are only a few of many variables that contribute to under-treatment of the mentally ill.[10]

Additionally, it is contended that health insurance related obstacles contribute to the disparity between mental health disorders’ prevalence and treatment.[11] Specifically, high incidences of unemployment among individuals with more severe forms of mental illness and the inadequacy of Medicaid eligibility requirements pose significant challenges for certain segments of the population suffering from mental health disorders.[12] The effects that the Affordable Care Act has had on insurance related issues will be addressed later.

A third reason that those who would benefit from treatment do not receive it is the stigma associated with being diagnosed with a mental health disorder.[13]  The Mayo Clinic helpfully defines stigma as “…when someone views you in a negative way because you have a distinguishing characteristic or personality trait…”[14] Stigma is then separated into two types; these types are Public Stigma and Self Stigma.[15] Public Stigma can be defined as “the reaction that the general population has to people with mental illness” and Self Stigma as “the prejudice which people with mental illness turn against themselves.”[16]  There are numerous factors that can foster stigma including the fear of violence associated with mental illness, the sensationalizing and stereotypical depictions of mental illness in movies and television[17], a lack of education and awareness concerning the facts about mental illness, and the over-generalization and improper categorization of mental illnesses leading to a misunderstanding of the range and complexity of the different types of mental illness.[18] Not surprisingly, both types of stigma can result in individuals not receiving the treatment they need.[19]

Simply discussing the reasons behind under-treatment of mental illness will do nothing to correct the issue. Along with the explanation provided by Representative Murphy for the inadequacy of treatment, he proposed legislation to ensure that greater access to treatment becomes a reality.[20] Additionally, relief may be found through legislation already in existence in the form of the Affordable Care Act (ACA).[21] ACA can help alleviate the problems of under-treatment by increasing access to health insurance and improving the overall quality of the insurance that is provided.[22] Although several of ACA’s requirements have only started to take effect this year,[23] the requirement to purchase insurance as well as increased access for groups who had previously suffered serious, tangible challenges to receiving adequate coverage will hopefully ensure that treatment for mental health issues increases.[24]

Along with solutions provided through the law and government, it is imperative that the stigma associated with mental health issues be reduced in order to encourage those in need to seek treatment for disorders. Some have asserted that a step to eliminating this stigma is to stop referring to it as such.[25] The reasoning for this is that the word stigma itself and its negative connotation refuse to confront the real sources of the problem such as “bigotry, hatred, unlawful and unjust discrimination.”[26] Others call for a more nuanced understanding of mental illness, greater education, and an increase in protections against discrimination provided by law.[27] Undoubtedly these are important steps to decreasing the role of stigma in preventing those who need treatment from seeking it.

Earnestly, I hope that I have contributed in some way to the awareness needed to improve mental health treatment through my writing because it is necessary for society to understand the causes of under-treatment of mental illness in order to combat it.

[1] Proclamation No. 9112, 79 Fed. Reg. 25,649 (Apr. 30, 2014).

[2] Understanding Mental Illness, CANADIAN MENTAL HEALTH ASS’N, http://www.cmha.ca/mental-health/understanding-mental-illness/ (last visited Oct. 26, 2014).

[3] Health-Care Reform: Psychology’s Role, AM. PSYCHOLOGICAL ASS’N, http://www.apa.org/health-reform/psychology-role.html (last visited Oct. 26, 2014).

[4] Facts About Stigma and Mental Illness in Diverse Communities, NAT’L ALLIANCE ON MENTAL ILLNESS, http://www.nami.org/ContentManagement/ContentDisplay.cfm?ContentFileID=5148 (last visited Oct. 26 2014).

[5] Rhonda S. Karg et al., Past Year Mental Disorders Among Adults in the United States: Results from the 2008-2012 Mental Health Surveillance Study, SUBSTNACE ABUSE AND MENTAL HEALTH SERVICES ASS’N (Oct. 2014), http://www.samhsa.gov/data/sites/default/files/NSDUH-DR-N2MentalDis-2014-1/Web/NSDUH-DR-N2MentalDis-2014.htm

[6] Id.

[7] Id.

[8] Mental Health Myths and Facts, U.S. DEP’T OF HEALTH & HUMAN SERVICES, http://www.mentalhealth.gov/basics/myths-facts/ (last visited Oct. 26, 2014).

[9] Breaking Down Barriers to Mental Health Care, AM. PSYCHOLOGICAL ASS’N, http://www.apa.org/monitor/2014/10/upfront-barriers.aspx (last visited Oct. 26, 2014).

[10] Representative Tim Murphy, General Speech on Helping Families in Mental Health Crisis Act (Dec. 12, 2013), http://www.c-span.org/video/?c4477276/rep-tim-murphy-helping-families-mental-health-crisis-act

[11] How Will Health Reform Help People with Mental Illnesses?, BAZELON CENTER FOR MENTAL HEALTH LAW (June 2010), http://www.bazelon.org/News-Publications/Publications/List/1/CategoryID/8/Level/a/ProductID/54.aspx?SortField=ProductNumber,ProductNumber

[12] Id.

[13] Facts About Stigma and Mental Illness in Diverse Communities, supra note 4.

[14] Mental Health: Overcoming the Stigma of Mental Illness, MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/mental-illness/in-depth/mental-health/art-20046477 (last visited Oct. 26, 2014).

[15] Patrick W. Corrigan & Amy C. Watson, Understanding the Impact of Stigma on People with Mental Illness, WORLD PSYCHIATRY, (Feb. 2002), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1489832/

[16] Id.

[17] Graham C.L. Davey, Mental Health and Stigma: Mental Health Symptoms are Still Viewed as Threatening and Uncomfortable, PSYCHOLOGY TODAY: WHY WE WORRY (Aug. 20, 2013), http://www.psychologytoday.com/blog/why-we-worry/201308/mental-health-stigma

[18] Paul Heroux, Mental Illness as a Civil Rights Issue, HUFFINGTON POST (May 8, 2013, 5:12 AM), http://www.huffingtonpost.com/paul-heroux/mental-illness-civil-rights_b_2835768.html

[19] Patrick Corrigan, How Stigma Interferes with Mental Health Care, 59 AM. PSYCHOLOGY 614, 619 (2004).

[20] Breaking Down Barriers to Mental Health Care, supra note 9.

[21] How Will Health Reform Help People with Mental Illnesses?, supra note 11.

[22] Id.

[23] Id.

[24] Id.

[25] Mike Smith, The Word ‘Stigma’ Should Not Be Used in Mental Health Campaigns, THE GUARDIAN (Oct. 10, 2014, 5:00 AM), http://www.theguardian.com/healthcare-network/2014/oct/10/stigma-should-not-used-mental-health-campaigns

[26] Id.

[27] Heroux, supra note 18.

The Kids Aren’t Alright By Hannah E. Hicks

The Kids Aren’t Alright

By Hannah E. Hicks

When Lucy and Carmen ended their decade-long relationship, their children, Julia and Jack, stayed with their biological mother, Lucy.[1] Having been unable to adopt the children she co-parented without divesting Lucy’s rights, Carmen was a legal stranger to Julia and Jack.[2] Unlike many in their situation, Lucy and Carmen remained friendly and worked out a child support arrangement and visitation schedule that allowed Carmen to maintain a close relationship with the children until her death from cancer in 2011.[3] Even so, Lucy, Julia, and Jack were told that Carmen’s funeral service was only open to family members, and they were excluded from the service.[4] To make matters worse, even though Carmen financially supported Lucy and her children after the break-up and throughout her illness, Carmen’s parents contested their daughter’s will and life insurance policy. Carmen’s inheritance ultimately passed to her parents rather than to her two children.[5]

This all too common story sheds light on the financial and social burdens that befall children of queer families when states fail to recognize de facto parent adoptions (also referred to as second- or, less frequently, third-parent adoptions). De facto parent adoptions are adoptions in which a person acting as a parent is permitted to adopt the legal parent’s child without divesting the parental rights of the legal parent. In every state, single adults (including LGBT individuals) are permitted to adopt.[6] However, states vary widely in their recognition of de facto parent adoptions.[7] Trial courts in a half dozen states have granted third parent adoptions to LGBT families.[8] In seventeen states, de facto parent adoption is an option for two-parent queer families.[9] Eight states have created barriers to de facto parent adoptions by LGBT families.[10] The status of de facto parent adoption is unclear in nineteen states, including Alabama.[11]

De facto parent adoptions should be recognized in every state because these adoptions serve the best interests of children. When parents are unable to establish legal ties to their children, families may face higher tax burdens and costlier health insurance, and may be denied government support in times of crisis.[12] Children may not be able to bring suit for the wrongful death of a parent, and may also be denied Social Security Survivors Benefits and Disability Insurance Benefits.[13]

Children growing up in queer families are often made to endure these stark realities while their counterparts who are raised in heterosexual households enjoy broad public benefits and protections. This is true even though less than a quarter of U.S. households are made up of families with two married parents and children.[14] In 2012, just 69% of children lived with married heterosexual parents.[15] It is imperative that state parenting laws reflect the shifting landscape of America’s families, especially when “children being raised by same-sex couples are twice as likely to live in poverty as those being raised by married heterosexual parents.”[16] When children of queer families are offered the same legal benefits and protections already provided to the children of married heterosexual parents, they stand a better chance of avoiding poverty or breaking its cycle.

Diverse families inhabit every sphere of society, though relatively few states have taken steps to provide them with essential legal protections. Today, de facto parent adoptions are an important leg in the race toward substantive family equality. De facto parent adoptions work to reinforce the social and political legitimacy of complex modern families. De facto parent adoptions serve the best interests of children by lowering families’ tax burdens, making healthcare more affordable, and ensuring the availability of survivor’s benefits. In addition, these adoptions provide benefits and protections to families for whom civil marriage is not an option. Tradition and popular opinion must give way to the welfare of children. By making de facto parent adoptions available to all persons acting as a child’s parent, states can help steer society toward full recognition of the rich relational world we inhabit.

[1] Movement Advancement Project, Family Equality Council & Center for American Progress, Strengthening Economic Security for Children Living in LGBT Families 18 (2012), available at http://www.lgbtmap.org/file/strengthening-economic-security.pdf.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Movement Advancement Project et al., supra note 1, at 4.

[7] See Mark A. Momjian, Cause of Action for Second-Parent Adoption, 25 Causes of Action 2d (2014); Ann Wooster, Annotation, Adoption of Child by Same-Sex Partners, 61 A.L.R. 6th (2011).

[8] Nancy Polikoff, Where can a child have three parents?, Beyond (Straight and Gay) Marriage (July 14, 2012), http://beyondstraightandgaymarriage.blogspot.com/2012/07/where-can-child-have-three-parents.html.

[9] Parenting Laws: Second Parent or Stepparent Adoption, Human Rights Campaign (Jun. 10, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/second_parent_adoption_6-10-2014.pdf.

[10] Id.

[11] Id.

[12] Movement Advancement Project et al., supra note 1, at 6.

[13] Id.

[14] Susan Heavey, U.S. Families shift as fewer households include children: Census, Reuters (Aug. 27, 2013 2:02 PM), http://www.reuters.com/article/2013/08/27/us-usa-families-idUSBRE97Q0TJ20130827.

[15] Movement Advancement Project et al., supra note 1, at 1.

[16] Id. at 2.

Changes in United States Sentencing Guidelines Could Reduce the Sentences of 46,000 Federal Prisoners, but is It Enough? By Sarah Alexander

Changes in United States Sentencing Guidelines Could Reduce the Sentences of 46,000 Federal Prisoners, but is It Enough?

Sarah Alexander

Introduction

On July 18, 2014, the United States Sentencing Commission (Sentencing Commission) voted to retroactively apply a change in the United States Sentencing Guidelines (USSG) for nonviolent drug offenders.[1] Ultimately, the Department of Justice and the Judicial Conference, as well as many other groups, supported the amendment, which was proposed in April of this year.[2] If Congress does not intervene before November 1st of this year, the retroactive amendment will take effect.[3] I believe this retroactive amendment to the USSG is well-intentioned, but ultimately falls short of the reform needed to bring equality to the justice system. The amendment provides no alternative to prison for non-violent drug offenders. Rather, the amendment reinforces the idea that prison is the only option for drug offenders.

The Amendment

The amendment will make nearly half of all prisoners incarcerated for drug crimes eligible for a sentence reduction.[4] Eligible prisoners may receive a sentence reduction averaging approximately two years, which would result in a sentence reduction of 18.8%.[5]

The Justice Department, at first, pushed back against the proposed amendment, but eventually negotiated the amendment’s postponed effective date of November 1, 2015.[6] Therefore, while the amendments will reduce prison sentences for nearly one-half of nonviolent drug offenders, no prisoner will be released from prison until after November 1, 2015. It is estimated that 46,290 nonviolent drug offenders will be affected by the retroactive sentencing amendment.[7]  However, that number will likely be reduced because the one-year delay will allow approximately 500 prisoners nationwide to finish their current sentences.[8] According to Judge Patti B. Saris, chair of the Sentencing Commission, “[t]he delay will help to protect public safety by enabling appropriate consideration of individual petitions by judges, ensuring effective supervision of offenders upon release, and allowing for effective reentry plans.”[9]

The Amendment’s Effects

The effect of the new sentencing amendments on the federal prison system will have both short and long term effects. The new average drug sentence for nonviolent offenders will be 9 years.[10] This reduction will save up to 79,740 bed years.[11] A bed year is “the equivalent of one federal prisoner occupying a bed for a year.”[12] The number of bed years saved could drastically reduce prison overcrowding. Presently, federal prisons are approximately 32% over capacity.[13] The estimated average cost of one bed year in 2014 is $11,000 per inmate.[14] Therefore, the amendment could possibly save the Bureau of Prisons more than $877,140,000. In Alabama alone, 905 inmates are facing the possibility of a reduced sentence.[15]

Inmates will not automatically be eligible for a reduced sentence.[16] In order to receive a sentence reduction, an inmate must first ask a judge to review the case.[17] The judge will then determine whether the inmate and a reduced sentence would create a risk of public harm.[18] Then the judge will either deny or grant the inmate’s request for a reduced sentence.[19]

Reactions to the Amendment

The amendment received unanimous support from the U.S. Sentencing Commission.[20] The proponents of the amendment rely on the amendment’s reduction of prison costs and the amendment’s protection of the public safety.[21] The Commission conducted a study of offenders released after a similar 2007 amendment reduced the sentences for crack offenders. The Commission found “that those offenders were no more likely to reoffend than offenders who had served their original sentence.” [22] Jesselyn McCurdy, the senior legislative counsel for the American Civil Liberties Union said, “As we continue the march toward fairness in our country’s failed racially biased sentencing policies, we can’t leave behind those who had the bad luck to receive their sentences before the policies were changed…Making these new guidelines retroactive will offer relief to thousands of people who received overly harsh sentences under the old sentencing guidelines.”[23] However, not all involved in the sentencing process are supportive of the amendment. [24]According to an anonymous Justice Department official, some federal prosecutors strongly oppose reductions in sentences for the cases that they have overseen.[25]

While the retroactive amendments are a step towards equality before the law, more action is needed. Sentencing Commission Chairwoman Saris emphasized that “[t]he step the Commission is taking today is an important one, but only Congress can bring about the more comprehensive reforms needed to reduce disparities, fully address prison costs and populations, and make the federal criminal justice system work better.”[26]

Conclusion

The retroactive amendment is viewed as a starting point to prison reform. However, I view the amendment as an attempt to curb the discussion of necessary, wider justice system reform. Rather than address the underlying systemic issue of sentencing nonviolent drug offenders to prison for a physical and mental disease, the amendment distracts the public from the issue with smoke and mirrors. The amendment allows people to feel as though the justice system is fair and equal, when, in reality, the justice system is still disproportionately sentencing minorities to prison for drug offenses.[27] The amendment pushes the ignorant idea that prison will reform these nonviolent drug offenders while offering no other possible disposition. Therefore, while I commend the Sentencing Commission’s unanimous support of the retroactive agreement, I fear that this will be the end of an essential debate in the area of civil liberties and civil rights.

[1] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, News Release (U.S. Sentencing Comm’n, Washington, D.C.), July 18, 2014, at 1.

[2] Id.

[3] Id.

[4] Timothy M. Phelps, Federal Gov’t Moves to Reduce Sentences of 46,000 Drug Offenders, Los Angeles Times (July 18, 2014, 9:10 PM), http://www.latimes.com/nation/nationnow/la-na-drug-sentences-reduced-20140718-story.html.

[5] Brendan Kirby, Thousands of Federal Drug Offenders Could Get Early Release Under Sentencing Comm’n Vote, Al.com (July 18, 2014, 4:11 PM), http://www.al.com/news/index.ssf/2014/07/thousands_of_federal_drug_offe.html.

[6] Timothy M. Phelps, supra note 4.

[7] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1.

[8] Brendan Kirby, supra note 5.

[9] Id.

[10] Id.

[11] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1, at 2.

[12] Id.

[13]  Id. at 1.

[14] U.S. Gov’t Accountability Office, Bureau of Prisons Info. on Efforts and Potential Options to Save Costs (2014).

[15] Brendan Kirby, supra note 5.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1.

[21] Brendan Kirby, supra note 5.

[22] U.S. Sentencing Comm’n Unanimously Votes to Allow Delayed Retroactive Reduction in Drug Trafficking Sentences, supra note 1, at 2.

[23] Brendan Kirby, supra note 5.

[24] Timothy M. Phelps, supra note 4.

[25] Id.

[26] Brendan Kirby, supra note 5.

[27] See E. Ann Carson and William J. Sabol, Dep’t of Justice Office of Justice Programs, Prisoners in 2011 28 (2012).

Highway Robbery by the Highway Patrol: Civil Asset Forfeiture and Modern Law Enforcement By Brad Hargett

 Highway Robbery by the Highway Patrol:

Civil Asset Forfeiture and Modern Law Enforcement

By Brad Hargett

Introduction

Imagine a family driving along the highway and suddenly being pulled over for a minor traffic violation. Instead of issuing a ticket the officer searches the vehicle and finds over $6,000 in cash. Now imagine that officer threatening the family with money laundering and child endangerment charges unless the parents waive their rights to challenge the seizure of cash. This scenario did not take place in some banana republic without rule of law. This occurred in the great state of Texas and was presumably legal.[1]

How Civil Asset Forfeiture Works

Civil asset forfeiture rests on the legal fiction that property can be guilty of a crime.[2] This leads to bizarre court proceedings such as United States v. Approximately 64,695 Pounds of Shark Fins.[3]  This process is also divorced from the supposedly underlying criminal charges, meaning that even if acquitted of a criminal charge of drug trafficking the defendant’s car may still be seized via civil asset forfeiture.[4] In fact, one study has found that “80% of people whose property was seized by the federal government were never charged with a crime.”[5] Generally, in order to challenge the seizure the property owner must prove his or her own innocence.[6] Under the “innocent owner” defense a property owner is “required to prove a negative: that he did not know or should not reasonably have known that his truck was being used illegally.”[7]

Federal law initially limited seizures to cash or property related to the production of drugs or other crimes.[8] Gradually, agencies were allowed to seize property purchased with the proceeds of such illicit activity.[9] For example, initially, the FBI could seize a house if drug traffickers used it to cut and repackage cocaine. Now, agencies can seize the house of the drug dealer if he used the proceeds from the sale of that cocaine to pay his mortgage. This practice has only increased since the enactment of the Comprehensive Crime Control Act of 1984 and subsequent passage of state civil asset forfeiture statutes.[10]

Civil asset forfeiture has been lauded as a boon to law enforcement in the fight against organized crime, the drug war, and even terrorism. The Department of Justice argued in 2008 that civil asset forfeiture deters crime, incentivizes local police to enforce laws against drug use and distribution, and helps fund cash-strapped police departments.[11] When used properly, the ability to seize ill-gotten proceeds undoubtedly is one of the most powerful weapons against drug cartels and other organized crime.[12] The process affects a criminal organization’s bottom line rather than simply locking up low-level, dispensable members of the gang or cartel.[13] In addition, seized funds are often re-invested in law enforcement equipment and training, theoretically leveling the playing field between cash-flushed cartels and cash-strapped cops.[14]

Problems with Civil Asset Forfeiture

However, this incredibly powerful weapon has the potential to catch innocent citizens in the cross hairs. In states with very little oversight, the civil asset forfeiture process is increasingly seen as an easy way to fund cash-strapped police departments and city governments.[15] Purposefully or not, these practices often affect people least likely to afford the initial seizure much less the cost of hiring an attorney to challenge it. Disputing the popular notion that civil asset forfeiture targets drug kingpins and cartels Lee McGrath, of the Institute for Justice notes that “in reality, it’s small amounts [of money], where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.”[16] It stands to reason then that if aggrieved property owners do not often challenge these seizures there is little reason to reign in the practices. From a law enforcement agency’s perspective budget shortfalls can be compensated for by civil asset forfeiture with no consequences. If civil asset forfeiture was originally considered a deterrent to drug cartels, one is left with the question: In modern execution, where is the deterrent for police abuses?

Reform Efforts

In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA). Notably, this act increased the burden of proof to require the government to show by a preponderance of the evidence that the property is subject to forfeiture.[17] The prior burden of proof was probable cause; in effect, an indictment prima facie evidence that the property was subject to forfeiture.[18] Perhaps the most important aspect of CAFRA was that it clarified the “innocent owner” defense noted above. Subsequently, property owners had a specific guideline to challenge the forfeiture by arguing that the owner “‘did not know of the conduct giving rise to the forfeiture’ or, upon learning of the conduct, did ‘all that reasonably could be expected under the circumstances to terminate such use of the property.’”[19] For example, if a homeowner’s son was selling marijuana out of the home, under federal law, the parent could avoid forfeiture by showing that she was unaware of the drug dealing, kicking the offender out of the home, or informing the police of the illegal conduct.[20] As noted above, the innocent owner defense is problematic because it forces the aggrieved property owner to prove a negative. Nonetheless, the defense was a welcome reform at the dawn of the twenty first century.

In the wake of CAFRA, several states have attempted to reform civil asset forfeitures. For instance, one Maryland state senator has proposed more modest reforms, such as requiring police to publicly “report the types of property seized, the crimes with which they are believed to be linked, and what happened in any related criminal case.”[21] Although this wouldn’t directly benefit an aggrieved property owner, one would hope that public scrutiny would deter some of the worst abuses of the process. Ultimately, this bill stalled in the Maryland state senate.[22] Moreover, even where states have passed reform measures, law enforcement agencies have skirted the reforms by partnering with federal agencies through equitable sharing programs or lobbied for an outright repeal of civil asset forfeiture reform statutes.[23]

Conclusion

In a recent ACRCL blog post, my colleague, Stephen McKitt, recently discussed the turmoil in Ferguson, Missouri by asking the eternal question: “Who watches the guardians?”[24] Unfortunately, in the context of civil asset forfeiture, law enforcement agencies have avoided public scrutiny for far too long. Reform efforts, especially at the state level, are piecemeal and often unsuccessful. Currently, law enforcement agencies have nothing to lose and everything to gain by aggressively seizing assets. The problem is complex and, as such, can only be addressed with comprehensive reforms, including appointed counsel for all aggrieved property owners, public reporting of seizures, restrictions on the use of seized funds, and proper training to reduce roadside abuses. Without such reforms the highway patrol will continue to enjoy a license to engage in highway robbery.

[1] Sarah Stillman, Taken, The New Yorker, Aug. 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken?currentPage=all

[2] Radley Balko, Utah Lawmakers Quietly Roll Back Asset Forfeiture Reforms, The Washington Post, Jan. 8, 2014, http://www.washingtonpost.com/news/opinions/wp/2014/01/08/utah-lawmakers-quietly-roll-back-asset-forfeiture-reforms/

[3] Stillman, supra note 1.

[4] Abby Simons, Law Requiring Guilt for Forfeiture of Property Sparks Debate, Star Tribune, Mar. 7, 2014, http://www.startribune.com/politics/statelocal/249088941.html

[5] J.F., What Civil-Asset Forfeiture Means, The Economist, Apr. 14, 2014, http://www.economist.com/blogs/economist-explains/2014/04/economist-explains-7

[6] See, Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces 152 (Public Affairs Publishing, 1st ed. 2013).

[7] El-Ali v. State, 428 S.W.3d 824, 826 (Tex. 2014)

[8] Stillman, supra note 1.

[9] Id.

[10] Id.

[11] John L. Worrall, Problem-Oriented Guides for Police Response Guides Series No. 7: Asset Forfeiture 13-14 (Center for Problem-Oriented Policing, Inc. 2008), available at http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeiture.pdf

[12] Daniel H. Cicchini, From Urbanization To Globalization: Using The Federal Money Laundering And Civil Asset Forfeiture Statutes In The Twenty-First Century Drug War 41 Rutgers L.J. 741, 753 (2010) (discussing efficiency of deterring drug cartel leadership rather than incarcerating low-level offenders via asset forfeiture).

[13] Id.

[14] Balko supra note 6 at 222. Of course this can be troublesome in another sense. For example, when drug interdiction task forces sit on a war chest they may just decide to spend that cash on a deeply discounted MRAP from the Pentagon’s 1033 program. It is not a coincidence that civil asset forfeitures have skyrocketed as suburban police forces are becoming more and more militarized.

[15] Stillman, supra note 1 (noting that the Detroit Police Department has increased seizure raids in response to the city’s bankruptcy and the department’s subsequent budget slashing.)

[16] Id.

[17] Brant C. Hadaway, Executive Privateers: A Discussion on Why the Civil Asset Forfeiture Reform Act Will Not Significantly Reform the Practice of Forfeiture, 55 U. Miami L. Rev. 81, 104 (2000).

[18] Id.

[19] Id. at 107.

[20] Stillman, supra note 1. This example is drawn from the case of Mary Adams.

[21] Ian Duncan, Senator Proposes More Tracking for Asset Forfeiture Cases, Baltimore Sun, Mar. 1, 2014, http://www.baltimoresun.com/news/maryland/sun-investigates/bs-md-sun-investigates-asset-forfeiture-20140301,0,6043652.story; The Georgia legislature proposed a similar measure that included provisions that would strip departments of seized assets for failure to comply with reporting and use restrictions. Legislative Agenda, ACLUGA.org, http://www.acluga.org/get-involved/legislative-work/legislative-agenda/ (last visited October 5, 2014); This bill also failed to pass through the state legislature.

[22] Maryland SB 468, OpenStates.org, http://openstates.org/md/bills/2014/SB468/ (last visited October 5, 2014).

[23] Balko, supra note 2.

[24] Stephen McKitt, Who Guards the Guardians Themselves?, ACRCL Blog, https://alabamacivilrights.wordpress.com/2014/09/16/who-guards-the-guardians-themselves-by-stephen-mckitt/

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