It seems appropriate that the career politician Rep. Dan Lungren (R-Calif.) would be defeated in the same election in which voters in his own state reined in the infamous "Three Strikes and You're Out" law, and in which voters in Washington and Colorado historically voted to legalize marijuana. Over the course of his career, you'd be hard-pressed to find a more dedicated drug warrior or a politician more committed to alleged tough-on-crime policies than Lungren.
First elected to Congress in 1978 at the age of 32, Lungren rose in stature with the election of Ronald Reagan in 1980, and quickly became a darling of the tough-on-crime crowd and the rising moral majority movement. No new anti-drug law was too tough for the young congressman. In 1984, he was a sponsor of the Comprehensive Crime Control Act, at the time one of the most sweeping pieces of anti-crime legislation in U.S. history. The bill gave prosecutors the power to appeal sentences (previously, only defendants could do that) and eliminated the right to bail for people accused of certain drug crimes, according to Smoke and Mirrors, a book by journalist Dan Baum. Lungren had already worked to make increasingly less serious crimes subject to increasingly longer sentences, and he ended a federal policy of allowing young, first-time drug offenders to clear their records after they had served their sentences and if they committed no future crimes, Baum wrote.
But the most odious part of the Comprehensive Crime Control Act -- and the part that, over the years, Lungren has taken most pride in -- gave the government broad new asset forfeiture powers. Civil asset forfeiture gives the government the ability to seize property connected to certain crimes under civil law, instead of criminal law. Because the law is civil, the government's burden of proof is lower, and police and prosecutors only need to show probable cause that what they've seized is connected to drug activity. The burden then switches to the property owner to show he obtained the property or earned the cash legitimately. The owner never needs to be charged with a crime -- indeed, in most cases they aren't.
Lungren did not respond to a request to comment for this article.
The 1984 bill included a provision allowing police departments and prosecutors' offices to keep the proceeds from these forfeitures, creating an enormous incentive for them to "find" connections that may not have existed. The bill also allowed local police to call the DEA with information after finding certain property. The DEA would take a cut of the bounty, and then give the rest back to the local police agency. The policy allowed police departments to get around the laws some states had passed to make forfeiture proceedings fairer. Additionally, the 1984 bill allowed the government to seize a drug suspect's assets before filing charges, leaving suspects with no money to hire legal representation. (Property owners had no right to a court-appointed attorney in civil forfeiture cases.)
Two years later, NBA prospect Len Bias died of a drug overdose. Washington slipped into a feverish drug-war mania, and few politicians were more hysterical than Lungren. In Smoke and Mirrors, Baum writes that Lungren wanted to make it illegal for anyone to accept money from a drug dealer. "Make it illegal for a dry cleaner or a grocery store to take money from a drug dealer, [Lungren] argued, and if they do, seize the business. Put the merchant in jail." Referring to the death of Bias, Lungren implored, "We have been far too lenient," according to Baum.
Upon reading an article in Discovery magazine about "designer drugs," Lungren wanted to ban any "substance which has a stimulant, depresant, or hallucinogenic effect on the central nervous system," Baum wrote. "That would include coffee, alcohol, and a long list of legal pharmaceuticals." Not to mention nicotine.
In 1991, Lungren was elected attorney general of California. He would hold that office for the next eight years. During his time as the state's chief law enforcement officer, Lungren supported and lobbied for "Megan's Law," the genesis of the idea of the sex offender registry, along with the "Three Strikes" law that California voters narrowed earlier this month. He sponsored a law allowing minors as young as 14 who are accused of murder to be tried as adults. He also led a national effort to limit lawsuits filed by prisoners, which produced the federal Prison Litigation Reform Act of 1996. While purported to prevent prisoners from suing because they want better desserts or more television, Human Rights Watch has since found that the law has made it more difficult for prisoners to sue to stop sexual abuse, poor medical care, prolonged use of solitary confinement, and other non-trivial abuses.
About a year into Lungren's first term as attorney general, a team of 31 police officers from five local, state, and federal police agencies raided the home of Malibu, Calif., millionaire Donald Scott. They claimed to have been looking for a massive marijuana operation. Scott, in fact, was opposed to illicit drugs. But the officers did wake Scott and his fiance. When Scott heard her scream at the sight of armed men in their home, he grabbed his gun to confront them. A deputy then shot Scott dead.
Though he was the attorney general at the time, Lungren was never much interested in getting to the bottom of why an enormous raid team from multiple police agencies could have been so wrong about Donald Scott. They thought they'd find 4,000 plants. They found none. Lungren also did not show much concern over the fact that a California police officer had killed an innocent man.
Fortunately, Ventura County District Attorney Michael Bradbury was concerned about both. He launched an investigation, and in 1993 published a damning report, strongly suggesting that the L.A. County Sheriff's Department conducted a sloppy investigation that ended with an unnecessarily violent raid because they were interested in obtaining Scott's large property through asset forfeiture laws. Those would be the same laws Lungren helped pass when he was in Congress. Lungren dismissed Bradbury's report as "inappropriate and gratuitous."
Throughout the 1990s, California police departments would conduct an increasing number of drug raids, in some cases motivated by the lucre of asset forfeiture -- including the fatal 1999 El Monte raid on Mario Paz, and a 1992 DEA raid on the San Diego-area home of Donald Carlson, in which Carlson was shot four times and spent six weeks in intensive care. He too was innocent.
Even Lungren's fellow conservatives have recognized the abuses wrought by asset forfeiture over the years, including columnist/pundit George Will (recently), and the late Rep. Henry Hyde (R-Ill.), who in 2000 led an effort to reform the law Lungren worked so hard to pass.
Lungren also vigorously opposed Proposition 215, the 1996 ballot initiative that legalized medical marijuana in California. After it passed, Lungren did the best he could to undermine voter intent, including taking the position that California law enforcement officers could arrest citizens for breaking federal law -- an odd assertion from an alleged believer in federalism. When Garry Trudeau mocked Lungren's opposition to Prop 215 in his "Doonesbury" comic strip, Lungren launched a surreal campaign against "Zonker" -- a fictional comic strip character -- that included a press conference and letter to the editor of the Los Angeles Times.
Lungren has often cited his Catholic faith as the reason for his career-long opposition to abortion. But Lungren has also been a strong advocate for the death penalty, a position that puts him at odds with his church. Lungren has boasted about his efforts to ensure California's first execution in more than 20 years shortly after he became attorney general. He also spent considerable time in that position and then again after he was reelected to Congress attempting to limit the number of appeals permitted to death row inmates. In 2006, Lungren sponsored a bill that would strip federal courts of the power to review habeas corpus petitions in state death penalty cases. By then, DNA testing and journalists in Chicago and elsewhere had already exonerated a number of inmates who had previously been slated for execution, many only after federal courts intervened.
Lungren wasn't alone, of course. And he did support the 2010 Fair Sentencing Act, which lessened (but didn't eliminate) the discrepancy in penalties between crack and powder cocaine. But when a politician leaves office after a long career, there's often a tendency to issue platitudes about his devotion to public service, regardless of the actual consequences the policies he supported may have had. Dan Lungren did a lot of damage -- to the criminal justice system, and to the people wrongly or unnecessarily swept into it. A lifetime of public service doesn't change that.