Hastings Constitutional Law Quarterly


David T. Gibson


The "War on Drugs" has proven a costly program for the federal government. One of the ways that this ambitious and resource intensive effort has sustained itself is through asset forfeiture of property previously held by criminals. By seizing title to confiscated property that has been used directly in drug crimes or indirectly to further a criminal conspiracy, the government has been able to absorb substantial resources to further its efforts in waging its drug war against drug criminals.

Asset forfeiture is a powerful tool wielded by law enforcement, and can quickly and effectly shut down drug production and trafficking operations by confiscating the means and the profits of those criminal enterprises. Similarly, asset forfeiture can be obtained in civil proceedings, where criminal laws may otherwise fail to reach.

This tool can be used even more effectively, to further federal drug policy enforcement on the state and local level, and to reduce the growing drain on federal resources already strained by ongoing drug policy enforcement efforts.

This note discusses ways that states could be incentivized to enforce federal drug policy by sharing the proceeds of asset forfeitures, as well as several possible challenges awaiting such a change of tactics, including claims of conter-federalism, sovereign immunity, and due process.