A bank robber walks into a bar and buys drinks for everyone inside. Who’s going to turn him in? What if he decided to “equitably share” the spoils with the bar’s patrons as well?
Rather than righteous condemnation, the mob might instead shower the thief with praise — perhaps even pleas to steal even more.
This scenario is not unlike what goes on within government and civil asset forfeiture. And with the billions of dollars implicated in this heist, those involved have good reason to remain thick as thieves, so long as they each get their “taste.”
Civil asset forfeiture is generally understood to be a highly questionable legal process by which the state can take cash, property, or other assets from an individual suspected of wrongdoing. However, unlike criminal forfeiture, the property in question can be seized without even charging the owner with a crime.
What’s more, this “legal plunder” — as the Institute for Justice has dubbed it — has over time created a perverse economic incentive for the government’s law enforcement agencies to seize innocent people’s property and use the proceeds to fill their budgets to the brim.
Recent moves to reform forfeiture laws by various states have been met with fierce resistance from police associations, revealing just how deeply this practice has corrupted law enforcement with a reliance on forfeiture funds.
However, it is precisely because of this reliance on the revenue derived from civil asset forfeiture that the police — as well as everyone else — would do well to see an end to this practice.
To understand the insidious nature of civil asset forfeiture and why we would all benefit from its abolishment, it is worth exploring its origins. The practice has its roots in British maritime law, and it was the tyranny of the British crown that first introduced forfeiture to American colonists through “writs of assistance.” American revolutionaries rightly condemned and rejected asset forfeitures as “unreasonable searches and seizures.”
However, an exception to this protection of our freedom was made early on. And like with so many other egregious encroachments on our liberty, it was the collection of taxes toward the raising of federal revenue that laid the pretext.
The first US Congress passed forfeiture laws to seize property from those who failed to pay customs duties, which, according to Forbes, accounted for “up to 90 percent of the finances for the federal government during that time.”
Prohibition in the 1920s — when coppers faced off with bootlegging mafiosos in expensive suits — gave asset forfeiture a boost, but it was the surge in the War on Drugs in the 1980s that sent it soaring through the stratosphere. This is truly when the lust for profit was firmly cemented into policing, and the economic incentive to ruin lives and seize as much property as possible was born.
“Policing for Profit”
Since then, both federal and local law enforcement have continued to use the excuse of “dirty drug money” to confiscate cash and assets from citizens — both guilty and innocent alike — with seemingly reckless abandon.
According to an extensive report by the Institute for Justice (IJ), the Department of Justice’s Forfeiture Fund raked in $93.7 million in 1986. By 2014, annual deposits to that fund had swelled by 4,667 percent to $4.5 billion.
IJ’s report also indicates that the Department of Justice’s Forfeiture Fund took in approximately $29 billion from just 2001 to 2014 alone.
It’s worth noting that 2001 also marks the emergence of the US government’s “war on terror,” which, like the war on drugs, provided fresh incentives for law enforcement to target individuals suspected of wrongdoing and seize their property without charge.
According to the Washington Post, “there have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion.” More than half of that cash — $1.7 billion — found its way back to state and local law enforcement budgets, while the Justice Department, Homeland Security, and other federal agencies received $800 million. The Post also notes that half of these cash seizures were for amounts below $8,800.
The Equitable Sharing Program is what has allowed local police to circumvent state laws that limit either the use of civil asset forfeiture or the dollar amount that authorities can reap from their seizures. The program enables local and state law enforcement to partner with the federal government to seize property under federal law when it suits them. By doing so, the local agency may receive up to 80 percent of the proceeds, despite any state laws to the contrary.
Furthermore, federal law guarantees that the local agency gets to spend all the money without those funds being subject to the control or oversight of local and state legislatures. This, in essence, is what creates the economic incentive for local police to bypass state law and seize cash and property at will. Worse yet, forfeiture laws currently make it so most of these transactions take place away from public view, without a trace of transparency or accountability. The clear financial incentive for local police to engage in civil asset forfeiture and “equitable sharing” is what has earned this practice the dishonorable moniker of “policing for profit.”
For example, in California, law enforcement faces some of the strictest restrictions on civil asset forfeiture at the state level. However, according the the Institute for Justice, the state’s “heavy participation” in equitable sharing had — until very recently — rendered those restrictions meaningless. So much so, in fact, that California has been the largest recipient of federal forfeiture funds between 2000 and 2013, bringing in a whopping $696 million.
“Pennies from Heaven”
It is not difficult to see how this profit motive has shaped police procedure over the last 30 years, particularly as it relates to the war on drugs. One can imagine how police departments across the country may have initially reacted to the sudden influx of cash while simultaneously being freed of the burden of having to account for how they spend it.
In fact, our imagination meets reality when we examine the words of police officers themselves when speaking candidly about forfeiture.
Take, for instance, statements from Deputy Ron Hain of Kane County, Illinois, who wrote in a training manual published in 2011 that “all of our home towns are sitting on a tax-liberating gold mine” as a result of civil asset forfeiture.
And as one would expect from the rewards of such a “gold mine,” much of these funds have been spent rather frivolously — on items that, as the police chief of Columbia, Missouri, Ken Burton put it, would be “nice to have.”
During a meeting of the Columbia Citizen Police Review Board in 2012, Burton described the money gained from civil asset forfeiture as “kind of like pennies from heaven.” He said “it gets you a toy or something you need, is typically how we look at it.”
Depending on the department, these “toys” can range from BearCat armored personnel carriers and assault rifles to coffee makers and margarita machines.
Over time, however, local police have come to depend on these “pennies from heaven” and are increasingly looking to forfeiture funds for things that their departments actually need rather than simply “nice to have.”
In fact, the Washington Post’s six-part exposé revealed that “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.” In Texas, civil asset forfeiture revenue accounts for an average of 14 percent of local law enforcement’s budgets, according to data (PDF) obtained by the Institute for Justice. Furthermore, a survey conducted by John Worrall of California State University titled “Addicted to the Drug War” found that nearly 40 percent of the 1,400 “municipal and county law enforcement executives” polled said their agencies “are dependent on civil asset forfeiture as a necessary budgetary supplement.”
The Road to Recovery
The first step toward recovery for an addict is admitting he has a problem. Unfortunately, far too many police officers, as well as the leaders of the associations that represent them, are still in the denial phase of their struggle with this addiction.
Much can be gleaned from the way these groups have reacted to attempts to reform forfeiture laws or any other potential disruption to this lucrative racket.
For example, when the Department of Justice temporarily suspended the Equitable Sharing Program in late 2015, the International Association of Chiefs of Police called the decision “detrimental to state, local, and tribal law enforcement agencies and the communities they serve.”
The National Sheriffs’ Association took it one step further, calling the DOJ’s move an “attack on law enforcement” and adding that the “safety and security of our communities is being put at risk.”
Fortunately, however, efforts continue to be made at the state level to close the federal “equitable sharing” loophole and remove the profit motive from policing. New Mexico is currently leading the way with such reform, and as of 2015, now have “the best forfeiture laws in the country,” according to the Institute for Justice.
IJ sums up New Mexico’s reforms in the 2nd edition of their “Policing for Profit” report as follows:
In order to forfeit property now, the government must first convict its owner of a crime. It must then tie the property to that crime with clear and convincing evidence in criminal court. New Mexico’s reforms also shift the innocent owner burden to the government, which must disprove an innocent owner claim by providing clear and convincing evidence that the person had knowledge of the crime giving rise to the forfeiture. Finally, a full 100 percent of forfeiture proceeds must be deposited into the state’s general fund, eliminating law enforcement’s motive to police for profit.
By eliminating the economic incentive to seize people’s property, we can begin to reverse the decades-long negative trend in policing and minimize the abuses that stem from asset forfeiture. This would prevent situations like that which took place in Tenaha, Texas, from 2006 to 2008, when local police seized roughly $3 million from at least 140 people who officers stopped under phony pretenses.
Police in Tenaha targeted out-of-state drivers and threatened them with trumped up charges — even the state’s removal of their children — unless they agreed to turn over cash, vehicles, and other valuables.
While the Tenaha case received national attention as a result of a lawsuit filed by the American Civil Liberties Union, similar stories of abuses repeat themselves across the country.
But they don’t have to.
While few Americans may bat an eye at the idea of police taking away a “bad guy’s” Ferrari in the name of ensuring officers are equipped with the necessary tools to protect local citizens, even (honest) policemen cannot be happy about building their budgets on the backs of innocents deprived of their property. The sad fact is, however, that our current system is designed to do just that.
What if instead of incentivizing this sort of “legal plunder,” the citizens of Tenaha, for example, had the ability to withhold their tax dollars from their local police department upon the revelation of systematic abuses? How would that affect the police department’s future behavior? Would these kinds of abuses have occurred in the first place?
The time has come to ask ourselves the big questions: Is this really a good way to “protect and serve” our communities? Is it even sustainable? What kind of behavior do we want to encourage from our public servants, and how do we better accomplish this?
To begin with, an end to civil asset forfeiture as we currently know it would greatly benefit our country by and large, including the police.
The enhancement to liberty is self-evident. The citizens of any given town will undoubtedly rest easier knowing their property isn’t at risk of seizure because their local police department lacks equipment or needs a pay raise.
Equally important, however, is that police will no longer feel motivated — compelled even — to take money and other valuables from innocent people just to make their budgets whole. It also forces police departments to use their resources more wisely and remain accountable to the public that they serve.
In reality, it is in law enforcement’s best interest to welcome accountability and transparency. It behooves those who “protect and serve” to foster positive relationships with the communities in which they operate.
Ultimately, the more control citizens have over their local police department’s purse strings, the greater the incentive will be for police to provide better service. If there is one positive thing that can be learned from the last 30 years of civil asset forfeiture abuse, it’s this, and it’s a lesson that can be broadly applied to the public’s relationship with their government as a whole.