Yesterday, federal agencies led by the Department of Homeland Security raided roughly 12 medical marijuana dispensaries operating in Montana, where medical marijuana is legal. This appears to be a thinly veiled attempt to influence the Montana state legislature, which was holding hearings on the repeal of the medical marijuana law, which had been approved by voters. You can find more current information here.

Last year, NORML’s Paul Armentano wrote an op-ed in which he optimistically claimed that:

“…In short, the only way to fully protect all our citizens from these kinds of abhorrent events (SWAT raids) is through the legalization and regulation of marijuana for all adults.”

This is the conventional wisdom in the drug policy reform community, that successful marijuana legalization efforts will end SWAT raids and other violent enforcement tactics that are part and parcel of the War on Drugs. Lately, it has also been echoed by other notables in drug policy reform (Morgan Fox at the MPP comes to mind).

But it is wrong. It is wrong because the War on Drugs exists independent of marijuana prohibition. Ending marijuana prohibition is a necessary and liberty-enhancing imperative for this country, but it alone will not end the military-style raids on severely ill patients and businesses operating lawfully under state law.

It is common knowledge in the drug policy reform community that these raids are money-making ventures. We know that when federal agents raid lawful marijuana dispensaries they take money and jewelry from patients, seize the bank accounts of the business, and take nearly anything else of monetary value.

What is not commonly known or understood is how implicated these seizures are in the very foundation of the Drug War. A 1992 report on the Department of Justice’s new asset forfeiture programs notes:

“…They are based on a simple and clear set of objectives, namely to disrupt drug trafficking, take the profits out of crime, and pour the money or assets from these illegal activities back into the War on Drugs…” (emphasis mine)

Note the direct intent of the Department of Justice: to create an off-budget, non-appropriated revenue stream to fund a War on Drugs. Taxpayers would not be so amenable to the militarization and federalization of domestic law enforcement if they had to pay for it, so the DOJ created a mechanism to end-run the entire democratic appropriations process.

The asset forfeiture system now exists to funnel money from the Department of Justice to the Pentagon (for military equipment like Bearcat tanks, .50 caliber rifles, and to otherwise fund the domestic military/security/surveillance apparatus). It is this money that pays for the raids in Montana, and the money that can be seized from these raids is the reason why these raids will continue.

It is this mechanism, these asset forfeiture laws, that allows the seizure of property for the direct profit of law enforcement. This represents the critical, weak link at the heart of the War on Drugs; without the revenue stream to pay for this war, it would not exist. Moreover, a systemic incentive for government overreach would not exist, and our federal law enforcement would be far more in tune with the desires of legislators and citizens (which one might think would be appropriate for any kind of democratic governance).

There are 217 federal laws allowing the civil, criminal, or administrative forfeiture of property and some 30 federal agencies that split an annual haul that I estimate to be between $15 and $20 billion dollars per year. Against this reckless host, marijuana law reform is like cutting a head off a Hydra; there are innumerable ways to circumvent these reforms though administrative law.

So here’s what I say. Marijuana law reform is vital. But without disconnecting the incentive structure that allows the Drug War to exist, we are fighting a war of attrition by an enemy that repeatedly outflanks us on every side. Even where medical marijuana reform has been passed, we are seeing repeated and continuing efforts by a variety of federal agencies to deny the legitimacy of democratically created state law. We’ve already seen the IRS start by auditing and seizing legitimate businesses in California, and now Homeland Security is leading the raids in Montana in an obvious political play to influence the actions of the state legislature. Across America, even doctors have found themselves the victim of raids for daring to prescribe pain medications to severely ill individuals. I’d lay good money on the proposition that the EPA, with its broad administrative power to search and seize property, may soon get into the game. (Does anyone remember Donald Scott?)

Worse, federal agencies have an incentive to lobby legislators to expand the scope of criminal conduct as a means to take more property from more people. This is a vicious, sick feedback loop: to ensure that forfeiture money keeps pouring into federal coffers, the DEA, BATF, and DHS (among others) will this year continue to recommend to Congress that we increase the scope of activities defined by law as “criminal”.

There can be no more serious issue in American governance. The existence of unaccountable, uncontrollable federal agencies who control their own funding will gut American democracy. The old Soviet ghost now animates the American police state.

Drug policy reformers should heed this call to re-engage the challenge of reforming America’s asset forfeiture laws. You’ll find it makes your marijuana reform efforts more successful, since government officials will no longer have an incentive to look for ways to circumvent your democratically won victories.