Civil Asset Forfeiture Abuse

The Perils of Letting Law Enforcement “Wet Their Beak:”

by Derek Cohen:

Imagine you owned a successful food truck.  Each month, you take in roughly $20,000 in cash payments.  Since your business’s insurance policy covers only $10,000 worth of cash-on-hand in the event of a theft, you make a trip to the bank each time the till approaches $9,500.

Cops with MoneyOne Monday after such a deposit, you attempt to restock using your company debit card only to be declined.  You call the bank and find out your assets have been frozen by the IRS, suspected to be proceeds of illegal activity and you to guilty of “structuring.”  Since the value of the seizure is below $500,000, they need not even seek the consent of a judge.  Rather, you must now prove that you had broken no law.

Criminal forfeiture is arguably the most commonly-known form of property confiscation.  Pursuant to an alleged violation of criminal law, government law enforcement agencies may take possession of property thought to have been used functionally in or garnered from criminal activity.  Firearms, vehicles, cash, and property are commonly seized during or shortly after arrest.  These items, even if of no evidentiary value, are held in possession of the state and liquidated (or used in law enforcement service) upon the finding of criminal guilt.

However, the practice of civil forfeiture targets the property, not the owner or user.  The government must only establish by preponderance of the evidence (commonly understood as a 51% probability a guilt – marginally “more likely than not”, the lowest burden of proof necessary for any legal finding) that property was used in or garnered from the commission of a crime, as determined by a judge.

Ostensibly, this practice has laudable aims.  These laws target the profitability of the criminal enterprise.  Not only is the offender divested of the instruments and proceeds of their illegal activity, but the value of the seized item can be transferred to the enforcement agency, functionally moving much of the cost burden of law enforcement from the taxpayer to the violator.  It is also argued that the forfeiture of property has a deterrent effect on crime as well, though there has been little empirical evidence in support.

However, the perverse incentives of these laws are readily apparent.  Law enforcement agencies are granted a great deal of discretion in performing their daily duties in deciding if, who, and where to conduct a search.  On the whole, these searches carry a rather small likelihood of producing contraband or evidence of illegal activity.

Concurrently, the consequences of improper, fruitless searches are almost nil.  Should an officer turn up nothing in their search and conduct it without probable cause (or commensurate justification), the victim can file a grievance or seek civil damages under § 1983 of the US Code.  The former rarely leads to anything more than a minor tut-tutting of the officer from a supervisor and perhaps some short-lived local notoriety, the latter places the burden of proving the absence of probable cause on the victim, usually with considerable expense that far outweighs the prospect of monetary gain.

Consider that municipal and county law enforcement budgets are, for reasons of political and fiscal necessity, are kept as low as possible.  Many cities are facing the need to layoff public safety personnel as operations costs and pension liability mount.  As such, it is no wonder that departments are open to alternative income streams like red light cameras, additional taxes, and even linking future pay raises to ticket performance.

This confluence of the [perceived] need for supplemental funds, the presence broad discretion, and little-to-no consequences for errors have led to the readily-apparent incentives to over-police, a phenomenon some scholars refer to as “Policing for Profit.”  While profitability is perhaps a misnomer, studies have shown that proceeds from civil asset forfeiture have become a necessary revenue source for many agencies.

Civil asset forfeiture also presents an in-road to federal interference with state criminal justice policy and prioritization.  Under the practice of “equitable sharing,” forfeiture proceeds stemming from joint law enforcement actions are divvied up between the federal agency making the seizure and supporting state or local agencies.  Intended to “foster cooperation” between the two levels of government, the practice is more accurately characterized as incentivizing the enforcement of and acquiescence to the federal law enforcement agenda.  This has been problematic in areas of murky federal preemption.  Further, the use of equitable sharing practices have been seen as a way to circumvent state legislation attempting to restrict the abuse of forfeiture in general.

Anecdotes of post hoc forfeiture impropriety abound.  Funds directly tracked by law enforcement agencies have been squandered on tickets to sporting events, beer and liquor, exotic travel, and bonus payments.

The impact of margarita machines on crime suppression is tenuous, at best.

Perhaps the most alarming facet is the rate at which the federal Asset Forfeiture Fund (AFF) has grown.  One year from its establishment in 1985, the AFF had taken in $93.7 million in deposits.  As of September 30, 2012, the AFF contained over $4.2 billion in total deposits from the fiscal year alone.  This near forty-five-fold increase far outstrips the estimated rate of inflation over the same time period.  Of course, a portion of the increase may attributed to the unchecked growth in scope of the federal criminal statutes.

Despite all the negative prognostication on forfeiture abuse, there is potential for reform.  Several deplorable cases have thrust the practice into the spotlight and triggered interest by several major outlets.  Recently, council members in Washington, DC – one of the worst civil asset forfeiture abusers in the nation – have introduced legislation to curtail some of the rampant exploitation seen in the District.  This is indicative of general groundswell of support for reform.

As it stands, the abuse of civil asset forfeiture represents the most pernicious role that the state can play; that of the taker beyond reproach.  Oftentimes the only recourse wholly innocent citizens have to recover their rightful property would cost more than the property’s value.  Consider this when you hear the argument that the “innocent have nothing to lose.”

 

Derek M. Cohen is policy analyst for the Center for Effective Justice with the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin. He may be reached at dcohen@texaspolicy.com and follow him on Twitter at @CohenAtTPPF.

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