Civil Asset Forfeiture Part Two: Arguments, History, and Reform

In part one, I introduced and explained the practice of civil forfeiture. We examined the extent to which it has been abused, and how bad incentives have led to corruption in law enforcement. We also analyzed the disproportionate effect it has on the poor and minorities.

Once police departments get their hands on a load of cash from some poor minorities, they have an unusual degree of freedom to spend it. The money must go towards things within the scope of the department’s needs, and it typically does. However, the largely unsupervised budget sometimes funds the further militarization of the police, buying armored personnel carriers, mobile command buses, and helicopters. Whether some of those purchases are necessary is debatable, but others are definitely unjustified, such as excessively expensive sports cars used as police cruisers or undercover vehicles. Here is a short list of wasteful spending by some departments.

Albany, New York, Police Department:

$7,711 on photographs of police officers and artwork for administrative offices

$16,190 on food, gifts and entertainment.

Colorado State Patrol:

$340 for a walnut plaque

$832 for knives as incentive awards

$599 on embroidered polo shirts

$907 for tickets to minor-league baseball games

$1,410 for fleece vests and bomber jackets

$107 for poker chips

$234 for various items from Bath & Body Works

St. Louis County Police Department:

$144,689 to reimburse employees for courses taken at local colleges and universities to complete bachelor's or master's degree programs, such as English Composition, Advanced Contract Law and Introduction to Astronomy

Fulton County, Georgia, District Attorney's Office: 

$5,000 for annual Christmas party, including a red cape printed with "Super Lawyer”

$6,650 on dinners, college football tickets, fundraisers and galas

Milwaukee County Sheriff's Office:

$2,040 on a billboard campaign during election season

Kimble County, Texas, District Attorney's Office: 

$14,000 in per diem money for a training seminar in Hawaii

Austin, Texas, Police Department:

$12,025 for awards banquet

$3,314 for department's running team

$1,895 for a race clock

$625 for coffee mugs

Montgomery County, Texas, District Attorney's Office:

$458.41 for tequila, rum, beer kegs and a margarita machine

$1,200 to golf tournament fundraiser for county constable

Webb County, Texas, Sheriff's Office:

$13,050 for newsletters 

$20,000 for TV commercials,criticized as re-election tools

To be fair, civil forfeiture has done some good in hurting high-level organized narcotics operations, as it was intended. It was even used in Bernie Madoff’s case to seize the illegal profits of his Ponzie scheme and use the money to compensate the victims. But there are ways we can curb the abuse of this tool without completely diminishing its usefulness, and the costs far outweigh the benefits. Furthermore, to accept the existence of civil forfeiture is to surrender some of our most fundamental values as a liberal democracy.

According to the Institute for Justice, 87% of DOJ forfeitures from 1997 to 2013 were civil forfeitures. The rest were criminal forfeitures, which requires a criminal conviction to seize a person’s property. Of those civil forfeitures, 88% went uncontested by the claimant in court. As we know, this could happen because they cannot afford the legal fees and time off work, they miss the deadline to file a claim, or they are too intimidated to pursue legal recourse. In one case in 2007, Jennifer Boatright and her boyfriend Ron Henderson were driving through Texas with their two children, one year old and 11 years old. They made the trip every April to walk the wildflower trails in Linden and visit Henderson’s father. They were stopped by an officer who told them they drove for a half-mile in the left lane without passing. When they replied that they moved into the left lane so the police car could get onto the highway, the officer asked to search their vehicle. He found no drugs, but he did find a glass pipe and cash the couple had saved to purchase a used car. The officer took them to the police station, where he gave them an ultimatum. Give us the cash or we charge you with child endangerment and put your kids in foster care. Of course, they forfeited their savings to keep their children.

We also know that the forfeitures rarely catch big drug kingpins or crimelords, because of the utterly small amounts of money or property most often seized. As of a few years ago in most states, the average amount taken was less than a couple thousand. In Philadelphia for example, it was only $192, mostly in poor neighborhoods. In other states such as Illinois, Tennessee, and Minnesota, they are $530, $502, and $451, respectively. In regards to the seizure of vehicles, according to The New York Times, prosecutors estimate that between 50% and 80% of cars seized were being driven by someone other than the owner. And for cases like Madoff’s, there was a criminal conviction. It was fundamentally different from the common paradigm of civil forfeiture cases, where there is only a “reasonable suspicion” that the profits were illicitly obtained. Advocates of civil forfeiture also point to cases such as Kenneth Lay of Enron, who died before he could be convicted. But certainly we can make exceptions where assets can be seized anyway. These cases are few in number, and are often distinct enough that a line could be drawn to legally separate them from common cases.

Civil forfeiture has existed since before the American Revolution, as part of English law. It was used during the 1920s to enforce prohibition by targeting the financial base of bootleggers, then faded away until 1984 when Reagan gave it a new set of teeth. That year, Congress passed the Comprehensive Crime Control Act, which allowed police to seize not just drugs and drug equipment as before, but also money, property, or real estate with a link to the crime. This opened the door for abuse, but what really created the incentive for abuse was the additional creation of an asset forfeiture fund. This allowed law enforcement to keep the proceeds for themselves, instead of putting it in a general fund or a neutral program focused on public education or community development. The third piece of legislation enacted with the bill was the Equitable Sharing Program. This allowed state and local law enforcement to collaborate with federal agencies on forfeiture cases, which created a loophole in state-level restrictions on asset forfeiture. With equitable sharing, state police can seize someone’s property, then hand it off to the Justice Department where the federal government forfeits it into their fund. Then, if the state where the property was seized has limits on how much of the proceeds their police departments can keep, the DOJ can simply “share” 80% of the profits with them.

In January of 2015, then Attorney General Eric Holder ended one subset of equitable sharing known as adoptive seizures. This is when state or local police conduct a seizure independently, then pass it off to the DOJ. This practice only accounts for 4% of seizures under the program though, so it barely made a dent. The other kind  of equitable sharing is when the DOJ and state police cooperate on a joint-operation. But however small his efforts were, they turned out to be in vain. In June of 2017, then Attorney General Jeff Sessions rolled back the Obama-era restriction. In a statement he said, “President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that. We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”

In his only attempt to justify the unpopular move, he cited a statistic, saying, “Now, let me just say, in the vast majority of cases, this is not an issue. Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.”

Here, he insinuated that because people do not challenge the seizures, they are necessarily guilty. But of course, we already know from heaps of evidence that this is incorrect. So the new policy will not primarily hit organized crime, as Sessions claimed. On the bright side, he did implement a few safeguards to protect innocent people, such as requiring state and local law enforcement wishing to participate in the Equitable Sharing program to provide information that shows they had probable cause for seizure, resolving the DOJ to adopt seizures worth $5000 to $10,000 only if there is some degree of criminality or if the U.S. Attorney’s office gives permission, and requiring the government to pay for the claimant’s attorney fees if the claimant prevails in the case. But these safeguards are far from sufficient to prevent abuse, and only pertain to forfeitures within the program.

Today, three states, North Carolina, New Mexico, and Nebraska, have abolished civil asset forfeiture entirely. 12 more states— Missouri, California, Oregon, Minnesota, Vermont, Montana, Nevada, New Hampshire, Ohio, Iowa, Conneticut, and Wisconsin— have required a criminal conviction in most cases. 16 states— California, Colorado, Conneticut, Florida, Illinois, Iowa, Maryland, Mississippi, Montana, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Utah, Oregon, and the District of Columbia— require the government bear the burden of proof for innocent owner claims. Seven states— New Mexico, Nebraska, Maryland, California, Ohio, Arizona, Pennsylvania, Colorado, and the District of Columbia— either regulate or abolish equitable sharing.

Much of the state-level reforms have passed in the last several years, and most states still don’t have adequate legislation in place to prevent abuse. This is surprising, as civil forfeiture is an extraordinarily unpopular policy, among Democrats, Republicans, and Libertarians alike. In 2016, both the Republican and Democratic party platforms supported civil forfeiture reform, and a 2015 poll found that approximately 84% of Americans oppose the practice. It is no surprise that Democrats and Libertarians rebuke it, but why Republicans? Despite their support for the “war on drugs” and the police generally, even they cannot ignore its blatant unconstitutionality.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” -Amendment IV

“No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” -Amendment V

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” -Amendment VIII

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” -Coffin v. United States (1895)

In 2017, Conservative Supreme Court Justice Clarence Thomas spoke out against civil forfeiture, saying, “This system, where police can seize property with limited judicial oversight and retain it for their own use, has led to egregious and well-chronicled abuses…these forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”

Progress is always underway, despite regressive policies enacted for the short-term. In 2018, people should grasp for anything, large or small, that can unite them with their opposition. This is one of those things. We can all agree that robbery is bad, regardless of our political predispositions. But the only way to accelerate the process is for more people to apply political pressure on their representatives. Call your congressmembers, especially if you live in a state that has not reformed its laws yet, and voice your concern. Send an email or a letter, whatever you prefer. It only takes ten minutes to create change.