Econlib: Drug Prohibition, Exclusionary Rule, Fourth Amendment, Opportunity Costs, US v Regan

Econlib: Drug Prohibition, Exclusionary Rule, Fourth Amendment, Opportunity Costs, US v Regan by Tarnell Brown:

In the 1914 decision US v Regan, the Supreme Court held that the “rule of evidence requiring proof beyond a reasonable doubt is generally applicable only in strictly criminal proceedings.” This decision is relevant because it has subsequently allowed for civil actions in rem (against a thing, such as property) to be taken against those who have not been criminally charged in persoram. (against a person). Specifically, Section 881 of Nixon’s Comprehensive Drug Abuse Prevention and Control Act of 1970 declared subject to forfeiture all controlled substances, as well as equipment used in the manufacture and distribution of such substances (Stahl, 1992). With §881, the practice of civil asset forfeiture, the extrajudicial seizing of property suspected of being used in (or being the benefit of) was born.

The addition of § 881(a)(6) in 1978 allowed for the seizure of both profits derived from the drug trade and anything purchased with those profits, while the 1984 addendum of § 881(a)(7) permits the forfeiture of any real property used to violate drug laws. Because the law enforcement agency responsible for the seizing of assets is allowed to keep the property – or any proceeds from the sale thereof – asset forfeiture has become an important source of revenue for these agencies. This has created a situation where a conflict between genuine enforcement of prohibition and revenue raising is all too often decided in favor of the latter (Boudreaux & Pritchard, 1996). This is made possible because of the differing standards between criminal and civil procedures; while criminal suspects must be found guilty beyond a reasonable doubt, victims of asset forfeiture only need be “reasonably suspected” of having committed a crime.