Maine law enforcement is keeping drug bust money meant for state general fund

A state law intended to curb police corruption in Maine is apparently going unheeded, according to a Beacon investigation into asset forfeiture.

When cash or assets connected to a drug crime are seized by police in Maine, those funds are required by state law to be deposited in the general fund. That statute has been lauded by a national civil liberties watchdog for curbing potential police corruption by putting forfeitures proceeds under the control of lawmakers, instead of the police departments who seize the money.

That law is not being followed. At the same time, some public health responses to the opioid epidemic have gone unfunded.

This disclosure follows a Beacon report published last week revealing that state law enforcement agencies are also failing to account for property and cash forfeited from drug prosecutions as required by Maine law.

The Institute for Justice (IJ), a non-profit libertarian public interest law firm, previously gave Maine’s forfeiture laws a “B+” because, “with few exceptions, all forfeiture proceeds go directly into the state general fund.”

According to their reading of the statute, “all forfeiture proceeds go to the general fund unless […] specifically approved by the court and by the governor or attorney general (in the case of a state forfeiture) or the relevant governmental entity (in the case of county-level or municipal-level forfeitures).”

In short, cash and property seized by state law enforcement is meant to be deposited into the state’s general fund where the money is under the discretion of the state legislature and elected public officials to utilize as they see fit.

In states where no such provisions exist, forfeitures go back to police departments. Other states, such as North Carolina, Wisconsin, Indiana and Missouri have laws that direct the money into public education. Maryland’s laws are most similar to Maine and also direct money into a general fund. IJ credits these laws with removing the temptation for police to seize property to boost their own budgets.

However, despite Maine’s forfeiture law’s potential to curb corruption, the state’s Office of Fiscal and Program Review has confirmed that — aside from a single deposit of $4,335 made by the Public Safety Department in 2010 — no recent proceeds from property forfeitures have gone into Maine’s general fund.

The provisions to direct seized cash and property into the state general fund were originally drafted in 1987 and amended in 1999. It is not clear how long this law has not been complied with by state public safety officials.  

“We see it as a problem and a way that is circumventing the intent of the law, which is to not give this money to law enforcement,” said Jennifer McDonald, a senior researcher with IJ, after reviewing the new evidence.

Because state law enforcement is failing to comply with the asset seizure reporting law, Maine lawmakers have no way to monitor the amount of money police are bringing in from forfeitures. Because of non-compliance with the general fund provisions, they can’t make use of those assets through the appropriations process.

Windfall for police as property seizures are on the rise nationally

Nationally, local law enforcement agencies are bringing in more money from forfeitures by conducting joint-investigations and prosecutions with federal drug enforcement agencies.

Through a practice called “equitable sharing,” the federal government typically keeps 20 percent of the proceeds and returns 80 percent back to state and local police. These shared funds would not go into the state’s general fund as intended by Maine statute since they are awarded through federal law.

In equitable sharing, prosecutions occur under federal forfeiture laws, which are typically less strict than state laws. Maine law requires a criminal conviction, along with proof that the asset is connected to a crime, before the property is forfeited. In contrast, federal law allows civil asset forfeitures, under which individuals do not have to be convicted of a crime to lose their property.

Nationwide, the amount of property and cash seized each year by the U.S. Department of Justice ballooned from $407 million in 2001 to $1.6 billion in 2017 — peaking in 2014 at $4.5 billion at the onset of the opioid crisis.

In all, the Justice Department shared $4.7 billion in forfeiture proceeds with local police departments across the country from 2000 to 2013, according to the IJ.

In Maine, the funds brought in from these joint drug busts may also be increasing.

Between 2000 and 2017, according to reports to Congress made by the U.S. departments of Treasury and Justice, the federal government paid nearly $13.3 million to Maine’s state and local law enforcement through its equitable sharing program — an average of $737,888 per year.

Source: The Institute for Justice obtained these totals through a Maine Freedom of Access Act request made to the Maine Department of Public Safety.

In 2017, the federal government paid Maine’s law enforcement agencies nearly $1.38 million, which is the third-highest amount since 2000 — behind $1.69 million in 2013, and $1.96 million in 2010.

To compare, the state’s main drug prosecution force, the Maine Drug Enforcement Agency, averages $237,395 per year in prosecutions without federal partners.

There are no available records indicating that any of this money was ever deposited in the general fund — other than that 2010 deposit of $4,335 made by the Public Safety Department.

‘You go through the federal process, which is more lucrative to local departments’

Chief Rich Stillman has headed the Bridgton Police Department for three years. Before that, he worked in law enforcement in Massachusetts, where state laws do not a require a conviction before a property is seized and as much as 100 percent of forfeiture proceeds go to law enforcement.

Though Maine has stricter laws, in his experience in both states during the onset of the opioid crisis Stillman observed that partnering with federal agencies typically benefits local police departments financially, he said.

“You go through the federal process, which is more lucrative to local departments if you come across a large sum of money in a drug seizure,” Stillman said.

“If it’s a large drug seizure you might want to go federal,” he said, “especially if it is Fentanyl, because the Feds have definitely ramped up the interest in prosecuting Fentanyl cases.”

A public health opportunity for Maine

The federal government, through the equitable sharing program, paid Maine’s law enforcement agencies nearly $1.38 million in 2017, which is the third-highest amount since 2000 — behind $1.69 million in 2013, and $1.96 million in 2010. | Photo courtesy of Flickr

In Maine, the general fund provisions present an opportunity to create a public health response to the state’s opioid crisis if law enforcement begins to conform with state law directing the millions seized in drug busts into treatment and other programs.

Lawmakers and advocates have suggested using money from drug prosecutions to fund initiatives such as medical-assisted recovery with FDA-approved drugs like methadone, harm-reduction services such as clean needle exchanges, and HIV and hepatitis testing, as well as diversionary programs for opioid users involved in the criminal justice system.

“There’s an intent here that this money go to the general fund, unless there has been some sort of court determination,” said state Rep. Drew Gattine (D-Westbrook), who co-chairs the Maine Legislature’s Appropriations Committee.

“There’s certainly bills with relatively low dollar amounts that don’t get funded and if there were a dedicated pot of money that could be possibly used, that would be helpful,” Rep. Gattine said.

In the legislature, LD888, a forfeiture reform bill, failed to pass last year. It proposed that records of forfeited property be posted by the Public Safety Department on a publicly accessible website and also prohibited state and local enforcement agencies from transferring seized property through a joint task force to a federal agency to circumvent state statute.

As equitable sharing continues between state and federal law enforcement agencies, and as public safety officials continue to fail to report seized assets mandated by statute, lawmakers are limited in their ability to steer forfeiture proceeds from further entrenching the War on Drugs, which many view as a failure.

“I never want to vote for more jails and prisons,” said state Rep. Karen Vachon (R-Scarborough), who sponsored a needle-exchange bill and a $6.6 million initiative creating a statewide resource and referral center for substance use disorder treatment — both of which were passed in July after Governor Paul LePage’s vetoes were overidden.  

“I think way too many people are being put in [jail] when they should be treated for a disease, just like diabetes,” Rep. Vachon said.

(Top photo via Flickr.)