Legal Commentary

New Forfeiture Report Blasts "Policing for Profit"

By Jeralyn

A new report, Policing for Profit, has been released by the Institute of Justice, a libertarian public interest law firm. (Html link here.)

Policing for Profit: The Abuse of Civil Asset Forfeiture is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government.

Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to
permanently lose her cash, car, home or other property.

Vanita Gupta of the ACLU and Scott Bullock, a co-author of the report, write at HuffPo and the ACLU blog that it's time to end the abusive practices. [More...]

The numbers involved are staggering. In 2008, the Department of Justice's forfeiture fund topped $1 billion. By contrast, in 1986, the year after the profit incentive was put into the law, the fund took in $93.7 million. This money does not account for the hundreds of millions seized by state law enforcement agencies. Nor is such an accounting a simple matter, as most states fail to collect data about forfeiture proceedings in their state and the use of forfeited assets.

The civil forfeiture laws were supposed to help fight the war on drugs, by making sure that crime wouldn't pay. But this broken system also sweeps innocent property owners into its net, seizing money based on a premise of drug activity with no hard evidence and no requirement to prove anything to a judge. It's no surprise that asset forfeiture practices disproportionately impact low-income, hard-working African-American or Hispanic people who the police decide look suspicious and who have little means to challenge their plight.

What needs to be done:

The best solution is to require a conviction before the government can take property, as is the rule in North Carolina. This would allow law enforcement agencies to seize criminal profits legitimately, while protecting innocent property owners from having to spend months or years in court fighting to reclaim their money. States must be required to collect data on their forfeiture rates and where the money is going, bringing transparency to their use of this powerful and invasive tool.

Most importantly, the funneling of money back into the budgets of law enforcement agencies must end. Rather than giving police and prosecutors a direct financial incentive to increase forfeitures, states and the federal government should put that money into a general, neutral fund, perhaps for education or drug treatment.

When it comes to car stops, the policy often amounts to "Highway Piracy."

Here's a little video:

To show how ridiculous the policy can get, in 2005 in Seattle, the feds tried to force two defendants to have their gold dental work removed and forfeited. The court said no. (The affidavit by the ATF for the seizure warrant is here.) As my pal, Seattle lawyer and forfeiture expert Rick Troberman, said at the time:

"I've been doing this for over 30 years and I have never heard of anything like this... It sounds like Nazi Germany when they were removing the gold teeth from the bodies, but at least then they waited until they were dead.

The War on Drugs causes corruption, and the police are not immune, as I pointed out back in 2003. I also wrote that year:

When police agencies benefit directly from the properties they seize, it doesn't pass the smell test. There's a conflict of interest. When the fruits of the seizure can be used to buy new high tech equipment and other perks for the police, the temptation is just too great to seize the cash by breaking the rules.

It's the lure of easy money, and the cops are just as addicted as anyone else.

Full post as published by TalkLeft on April 12, 2010 (boomark / email).