The Incentive to Steal: Asset Forfeiture and Police Abuse

 

Recently, R. Seth Williams, District Attorney of Philadelphia, wrote in praise of asset forfeiture laws, undoubtedly in response to the ongoing suit challenging the city’s forfeiture program. Mr. Williams defends asset forfeiture as necessary to root out the drug trade. He asks us to

Think about the kid who can’t play outside anymore because he might get caught in the cross fire; the grandmother who’s threatened by dealers when she just wants to sit on her porch; the homeowner … who has to watch [his house] value plummet when his block becomes an open-air drug market.

Unfortunately, it is hard to believe that law enforcement even seriously believes anymore that the primary purpose of forfeiture is to fight the drug war.

Stories of law enforcement abusing the practice are manifold. Whether it’s the Florida operation that allowed drugs to continue to flow north on I-95 while picking off people in the southbound lane who were known to be carrying cash, the Nevada officer who alone brought in over $60,000, or Philadelphia’s own notorious courtroom 478, where over $64 million of citizen property was seized in a 10-year period – what is clear is that there is a profit incentive at work motivating law enforcement to seize property for their own enrichment.

In New Jersey, Assistant Prosecutor Sean McMurtry made a stir in 2011 when he spoke about the practice. Lecturing on asset forfeiture, he advocated for heavy-handed seizure of private property, saying:

If you want the car … I’ll fight for it … If in doubt … take it!

Frankly, its hard not to become apoplectic when confronted with views such as those put forth by Mr. McMurtry and Mr. Williams. It is outrageous to permit property seizure without any actual conviction – which is frequently the case in asset forfeitures. Further, in most jurisdictions, persons who face civil asset forfeiture proceedings have no right to representation.

Worse still, prosecutors typically enjoy a much lighter evidentiary standard when attempting to seize property. In criminal court, a prosecutor must prove someone committed an alleged crime “beyond a reasonable doubt.” As asset forfeiture is a civil proceeding, prosecutors will typically only need to show that “more likely than not” a pile of cash, a house, or an automobile was somehow connected to possible criminal activity. Thus defendants, overwhelmingly indigent, are forced to represent themselves against sophisticated government actors who are intent on taking their property. In practice, this means that over 80% of federal forfeiture proceedings go completely uncontested.

Constitutionally speaking, asset forfeiture is, at best, of dubious legality — Supreme Court authority gives a clear understanding that due process rights are violated when government actors are given an incentive to seize property for the state’s own benefit.

For instance, the Supreme Court has held that statutes drawn to stimulate local governments “to organize and maintain courts to try persons accused of violations” were likely to run afoul of the Constitution, particularly when such inducements were a means of “substantially adding to the income” of the government body. Further, while “prosecutors are permitted to be zealous in their enforcement of the law,” they will nonetheless be subject to limitations when they are “distorted by the prospect of institutional gain as a result of zealous enforcement efforts.”

The practice works differently in different jurisdictions, but it is frequently the case that seized property is put directly into “service” by law enforcement. Further, in some jurisdictions, seized funds are used to pay salaries. For instance, from 2002 until 2011 Philadelphia seized over $64 million from its citizens — $25 million of which went to payroll.

In his lecture, Mr. McMurtry addressed the issue of bad incentives:

Well, there is an incentive, yes. Civil asset forfeiture is a pretty important component of the criminal practice and the money that goes to the local police department does provide some assistance to them.

The New Jersey prosecutor’s office is certainly aware of the lurking constitutional problems. A 2011 report to the governor observed that any relaxation of the current restrictions on the asset forfeiture programs “may substantially increase the likelihood that the entire forfeiture framework would be invalidated.” Why? Because “the constitutionality of civil forfeiture laws continues to be controversial.”

And so it is that I cheer the suit against the city of Philadelphia in the hope that a real dialogue on forfeiture reform can finally take place in legislatures across the country. Forfeiture actions should proceed against people, not property. There should be an actual criminal conviction, and the government should have to prove that the property was substantially connected to criminal activity.

Further, whatever else is changed about forfeiture practice, the bad incentives need to be addressed. Under no circumstances should law enforcement be entitled to retain any property. Put it in a neutral fund – education, drug treatment – anything except back into the coffers of the agency responsible for seizing assets.

Mr. Williams can pluck at our heartstrings with stories about threatened grandmothers and children who cannot play outside, but the road to safety must never be paved by a corrupt machine that violates the rights of American citizens.

 

 

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  1. user_385039 Inactive
    user_385039
    @donaldtodd

    This is how the Soviet Union was controlled. Unlimited police powers backed by prosecutors and judges who did not care about the rights of the accused.

    • #1
  2. DocJay Inactive
    DocJay
    @DocJay

    The last thing cops need is for citizens to think they are the ones we need to protect ourselves from. This will end poorly for the police. Our country is an armed country.

    • #2
  3. Zoon Politikon Inactive
    Zoon Politikon
    @KristianStout

    DocJay – I am going to hold out for legislative change. The movement against civil asset forfeiture has been gaining a lot of steam in recent years, thanks in no small part to the Institute for Justice. In the same way that many state legislatures passed reforms to curb eminent domain abuse following the Kelo case, I believe there can be changes that curb asset forfeiture practices.

    • #3
  4. Vance Richards Member
    Vance Richards
    @VanceRichards

    You do not even have to be charged, much less convicted, of any crime in order for the state to seize your property. That’s scary.

    I’m all for fines and restitution being paid by convicted criminals, but just taking stuff because, “It was probably, somehow, kind of, sort of linked to a crime that we are not arresting anyone for” is just wrong.

    • #4
  5. DocJay Inactive
    DocJay
    @DocJay

    Kristian Stout:DocJay – I am going to hold out for legislative change. The movement against civil asset forfeiture has been gaining a lot of steam in recent years, thanks in no small part to the Institute for Justice. In the same way that many state legislatures passed reforms to curb eminent domain abuse following the Kelo case, I believe there can be changes that curb asset forfeiture practices.

    Everyone can fight in their own manner. Some may even die trying to make a point.

    We had a rogue cop in nearby Humboldt County Nevada stealing money, mostly from minorities. I drive through there to go bird hunting. I am well armed and I don’t like criminals whether they wear a badge or not. When I have been pulled over I am polite and respectful. The last thing I want to think about is whether I need to draw faster than the criminal cop trying to steal my stuff. I am curious how it would be handled if I handcuffed the officer and tried a citizen’s arrest. That’s not a serious question but the depth of my disgust over this abuse is substantial. Time to fix this garbage.

    • #5
  6. Instugator Thatcher
    Instugator
    @Instugator

    I still don’t understand how civil asset forfeiture is constitutional.

    • #6
  7. Zoon Politikon Inactive
    Zoon Politikon
    @KristianStout

    Instugator:I still don’t understand how civil asset forfeiture is constitutional.

    Instugator, I’d argue that, at least as its currently practiced, its not constitutional. There are some historical uses for it that made more sense … put definitely not how its used today.

    • #7
  8. Zoon Politikon Inactive
    Zoon Politikon
    @KristianStout

    I just say this article about how there the state house speaker in Michigan wrote:

    The simple truth is our widely criticized law allows law enforcement to boost their budgets at auction with little or no responsibility. Most Michiganians have no idea this takes place, and many who do have seen their lives turned upside down with no way to hold the state responsible when mistakes are made

    So all is not lost, but we need a lot more individuals like this one to stand up to the law enforcement lobby.

    • #8
  9. user_348483 Coolidge
    user_348483
    @EHerring

    One must also consider the virtual Berlin Wall…the seizure of wealth from a rich person moving out of our country

    • #9
  10. Instugator Thatcher
    Instugator
    @Instugator

    Kristian Stout:

    Instugator:I still don’t understand how civil asset forfeiture is constitutional.

    Instugator, I’d argue that, at least as its currently practiced, its not constitutional. There are some historical uses for it that made more sense … put definitely not how its used today.

    I don’t see how it passes any portion of the 5th amendment language regarding property.

    nor shall any person… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Civil asset forfeiture doesn’t seem to me to pass the due process requirement to deprive someone of property nor the takings for public use clause.

    I don’t know how it would.

    • #10

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