Just as government corruption and private sector looting have exploded in the last thirty years, so too have police shakedowns. As the Sarah Stillman reports in a must-read New Yorker story, a type of seizure called civil forfeiture that was intended to hobble drug kingpins has now become a big revenue generator for police departments in many areas of the country. As the article depressingly records, in some places, such as a stretch of road in East Texas, civil forfeiture is a mechanism for local cops to separate people with out of state or rental license plates from their jewelry and cash. In other places, cars and even homes are the objects of the official seizures. The reason this form of legal larceny hasn’t gotten more attention is that the victims are often minorities (read unlikely to have powerful friends) and lower income.
Civil forfeiture is yet another aggressive policing tool brought into legitimacy the War on Drugs. As Stillman explains:
The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means…
In general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.
One result is the rise of improbable case names such as United States v. One Pearl Necklace and United States v. Approximately 64,695 Pounds of Shark Fins. (Jennifer Boatright and Ron Henderson’s forfeiture was slugged State of Texas v. $6,037.) “The protections our Constitution usually affords are out the window,” Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert, observes. A piece of property does not share the rights of a person. There’s no right to an attorney and, in most states, no presumption of innocence. Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of their seized goods. Washington, D.C., charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve….
Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed not at waitresses and janitors but at organized-crime bosses and drug lords. Law-enforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime. Even then, forfeiture remained an infrequent resort until 1984, when Congress passed the Comprehensive Crime Control Act. It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them.
And this is when the practice started going off the rails. Initially, the focus was on drug kingpins; the law allowed the Feds to nab a ranch linked to Pablo Escobar and the bank accounts of some Wall Street fraudsters. The story has a mind-numbing number of appalling stories, including a minister having cash from collections taken and a couple that had the misfortune to be carrying cash to buy a used car when pulled over threatened with felony charges and having their kids placed in foster care unless they signed over the funds. And don’t kid yourself that this practice is mainly about stopping criminals:
Yet only a small portion of state and local forfeiture cases target powerful entities. “There’s this myth that they’re cracking down on drug cartels and kingpins,” Lee McGrath, of the Institute for Justice, who recently co-wrote a paper on Georgia’s aggressive use of forfeiture, says. “In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.” In 2011, he reports, fifty-eight local, county, and statewide police forces in Georgia brought in $2.76 million in forfeitures; more than half the items taken were worth less than six hundred and fifty dollars. With minimal oversight, police can then spend nearly all those proceeds, often without reporting where the money has gone.
To illustrate, one of the few cases in Stillman’s article that actually had a connection to drugs was that of a couple in their late 60s where the 31 year old son still lived at home and sold $20 worth of marijuana three times to an undercover cop. For this, the police tried to take the home even though the son had no ownership of the home and the father had suffered a stroke and had just been diagnosed with cancer.
As news reports of some abuses emerged in the 1990s, Congress voted in the Civil Asset Forfeiture Reform Act in 2000. but that change appears to have curtailed bad behavior only at the Federal level.
Stillman points out that some states, such as Maine and Missouri, don’t allow the local police forces to hang on to the property but requires them to turn it over to another entity (North Carolina is the only state where civil forfeiture is prohibited). But the ones that allow the police the most latitude to use seized assets like Texas, Virginia, and Georgia, have seen the most rapacious police behavior. Some examples:
In some Texas counties, nearly forty per cent of police budgets comes from forfeiture….. In Oklahoma, a Caddo County district attorney hired a private company, Desert Snow L.L.C., to train a local drug-interdiction task force. Although the company’s contractors were not certified law officers, they reportedly interrogated drivers and took up to twenty-five per cent of the seized cash, even in cases where no contraband was present…. In Hunt County, Texas, I found officers scoring personal bonuses of up to twenty-six thousand dollars a year, straight from the forfeiture fund. In Titus County, forfeiture pays the assistant district attorney’s entire salary…
Scandals, too, emerge from the federal Equitable Sharing program, which allows local police to skirt state restrictions on the use of funds. In Bal Harbour, Florida, an upscale seaside village of thirty-three-hundred residents, a small vice squad ran a forfeiture network that brought in nearly fifty million dollars in just three years. The squad travelled around the country, helped to arrange money-laundering stings in far-flung cities, then divided the cash with the federal agencies involved. Last year, the Department of Justice shut down the operation, ordering the village to return millions in cash. But much of it had already been spent: on luxury-car rentals and first-class plane tickets to pursue stings in New York, New Jersey, California, and elsewhere; on a hundred-thousand-dollar police boat; and on a twenty-one-thousand-dollar drug-prevention beach party.
And as the Bal Harbour example attests, the better-off are sometimes the targets:
AIn the midst of festivities one evening in late May, 2008 [at the Contemporary Art Institute of Detroit], forty-odd officers in black commando gear stormed the gallery…One young woman who had fallen only to her knees told me that a masked figure screamed at her, “Bitch, you think you’re too pretty to get in the mud?” A boot from behind kicked her to the ground. The officers…placed the guests under arrest. According to police records, the gallery lacked proper city permits for after-hours dancing and drinking, and an old ordinance aimed at “blind pigs” (speakeasies) and other places of “illegal occupation” made it a crime to patronize such a place, knowingly or not.
After lining the guests on their knees before a “prisoner processing table” and searching them, the officers asked for everyone’s car keys. Then the raid team seized every vehicle it could find…Forty-four cars were taken to government-contracted lots.
Most of those detained had to pay more than a thousand dollars for the return of their cars; if payment wasn’t made promptly, the car would become city property. The proceeds were divided among the offices of the prosecutors, police, and towing companies.
The ACLU sued and won in lower court; Detroit is appealing.
The worst is that there’s no ready defense against this sort of thing, save living and vacationing only in states that don’t allow police to use grab and keep the property of people they think they can get away with victimizing. The case that Stillman uses as the backbone of her story took years to be fought and then resulted in a settlement by the police. Other attorneys say there are “affirmative defenses” but this area of the law is highly specialized and very few attorneys know it.
You need to read this piece in full. Stillman has done an admirable job in describing this appalling practice. And don’t even think of driving in East Texas.