I talk about civil asset forfeiture a lot, and every time – without fail – I have a great deal of people ask what asset forfeiture is. Definition wise, it’s a fairly simple concept to comprehend, but it’s the nitty gritty details that tend to confuse people. Just last week I was sitting in my doctor’s office talking about an article I did on forfeiture, and my interview with a lawyer familiar with CAF cases, when suddenly my doctor looked at me and said “I’ve never heard of that.” So if you’ve found yourself scratching your head, you’re definitely not alone.
Which brings me to this post. I’m going to write about civil asset forfeiture, hopefully in a way that gives my readers an easily digestible grasp on the situation, and also touch on Trump’s latest discussion with a handful of Sheriffs. Additionally, I’m going to pack this puppy with links (they’ll be in bold and underlined) because I’ve done a lot of reading and researching, and I want to make it easy for others to do so, as well.
Civil forfeiture in the United States, sometimes called civil judicial forfeiture or occasionally civil seizure, is a controversial legal process in which law enforcement officers take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime.
Originally, civil forfeiture was designed to aid in the war on drugs. It was an attempt to financially neuter drug dealers and curb illegal activity, while giving law enforcement agencies a financial boost so they can continue going after drug dealers and curbing illegal activity. Like a perfect circle of harmoniously sweet goodness that absolutely everyone with an IQ above that of a field mouse should have known would lead to corruption. See, the problem is that this practice became a financial incentive for law enforcement officers – because obviously – and when the government is supporting your habit, it’s just going to grow. On top of that, if your job security relies upon such funds, and you seek approval from your superiors, you learn to justify your actions.
Adding fuel to the fire are the financial incentives built into federal and most state civil forfeiture laws that encourage police and prosecutors to pursue property, even at the expense of other law enforcement priorities. Forty-three states direct at least 45 percent of forfeiture proceeds to law enforcement funds, typically those of the very agencies that seized the property. Twenty-five states and the federal government direct up to 100 percent to law enforcement funds. These funds may be spent largely at law enforcement’s discretion, subject only to loose controls and little to no oversight. From the little that is publicly reported, these funds are sometimes even spent on salaries, overtime and benefits, creating a still more troubling conflict of interest.
Now, if you watched Trump’s discussion with the Sheriffs, you’re probably thinking to yourself “but they’re taking money from convicted criminals!” However, you would be wrong. According to the Institute for Justice, “Just 13 percent of Department of Justice forfeitures from 1997 to 2013 were criminal forfeitures; 87 percent were civil forfeitures.”
People who were not convicted of a crime have their property taken by law enforcement, and many can’t afford a lawyer, or their documentation is delayed, or some minor detail in the paperwork doesn’t please the bureaucratic gods, and suddenly their claim can be dismissed, and their property is no longer their own.
Innocent until proven guilty.
Guilty until proven innocent.
Guilty even if you’re found innocent.
Guilty even if you never had the chance to prove your innocence.
Meanwhile Due Process is over dying in the corner Romeo and Juliet style with the 4th Amendment.
And if you’re thinking “Hey, they can clear this up, because I’m sure everything law enforcement officers do is transparent,” *insert hearty laughter here* you would, once again, be wrong.
Although the Department of Justice’s forfeiture database tracks more than 1,300 variables about cash and property seizures, not one indicates whether a criminal charge or conviction accompanied a forfeiture. The DOJ carefully tracks and reports forfeiture revenue, but fails to publicly report whether forfeitures target proven criminals.
Right now a handful of states do make forfeiture information publicly available, especially as knowledge on the issue grows (thanks, John Oliver), but I question how much ground we’ll gain with Trump and Sessions running the show; the latter of which is vehemently against reforming civil asset forfeiture. Which is funny because he fights for lower taxes, claiming that it’s so people can keep more of their money… apparently so that it can be legally stolen later by the government. Okay, it’s not really that funny.
Wait, it gets better.
Low standards of proof mean that, in most jurisdictions, civil forfeiture cases are fairly easy for the government to win and difficult for property owners to fight. In particular, winning a civil forfeiture case is often much easier for the government than securing a criminal conviction. In a stark illustration of the difference, a property owner in Arizona was acquitted of criminal charges yet still lost her house to civil forfeiture.
Prosecutors are well aware of the advantages such lower hurdles afford them. For example, when asked by a radio host why Philadelphia would not return seized property in a case where the owner was found innocent of any crime, then-Assistant District Attorney Beth Grossman made clear that a property owner’s guilt or innocence, as traditionally established in American law by proof beyond a reasonable doubt, is irrelevant when it comes to civil forfeiture…
I actually wrote about a case in Arizona here, which discussed the process of “uncontested forfeiture,” and in this particular state “uncontested forfeiture” means that you don’t even go before a judge, but instead take your case before the prosecutor that filed the forfeiture proceedings. So if your paperwork doesn’t meet all of the “technical requirements” according to the prosecutor, they get to decide your fate. And the “uncontested” portion is, well, a really funny use of the word.
“The Platt family’s lawyer, Paul Avelar, a senior attorney with the Institute for Justice, says Arizona government officials lied about the case.
“The Platts responded within the 30-day window by sending back a petition to the prosecutor with over 29 pages worth of records proving that it was their car,” Avelar said. “The prosecutor didn’t consider that petition. Instead, the prosecutor turned around and filed in court what’s called an ‘application for forfeiture,’ and that application said that the Platts had not objected to this forfeiture, even though the Platts did object.”
So basically, it’s like when your toddler takes your cookie and runs off with it, and then you have to convince them that you should have the cookie back because you want to eat it. And when the toddler asks “what’s in it for me?” and you answer with “well, nothing, but it was my cookie to begin with, and you had no reason to take it” you get to sit back and laugh while you watch your toddler eat the cookie.
Or like this story that involved a couple with children, traveling with cash to purchase a car, who were pulled over for driving in the left lane for half a mile without passing. After searching the car – because the officer claimed that he smelled drugs – the officers found the cash. “The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington [officer] claimed to have smelled it.)” They were then told that they could be charged with child endangerment unless they sign over their money to the city.
Child. Decoys. No, that’s not a joke.
But see, the burden of proof is low, because for the vast majority of states, a conviction is not necessary in order to keep an individual’s property.
The cost and difficulty of navigating a complex legal process to fight a forfeiture, plus the often low values of property seized, deter many from seeking their day in court. But making it to court unlocks a whole new set of challenges: Low legal standards of proof prevail throughout the country, with fewer than a dozen states requiring law enforcement to meet anything approaching the standard required in criminal proceedings. Indeed, federal and most state civil forfeiture laws merely require the government to show that property is slightly more likely than not related to a criminal violation—a far cry from proof beyond a reasonable doubt.
(The report I continue citing is from the Institute of Justice. I’ve read all 186 pages, and if you want to know the depth of the issue, I highly recommend it. Think of it like a good book that may cause you to dry heave.)
And one of the worst states? Well, good’ol Conservative Texas, of course. Home to the fine Sheriff Harold Eavenson, who told Trump that “on asset forfeiture, we’ve got a state senator in Texas that was talking about introducing legislation to require conviction before we could receive that forfeiture money.” My care account hits the negative when when I see a Sheriff acting like a victim because someone doesn’t want his people to steal from innocent citizens. He’s literally complaining that some mean legislator wants the police to respect due process. Mull that over for a while.
Texas law enforcement has a long history of policing for profit. The Institute for Justice found that the average law enforcement agency in Texas took in forfeiture proceeds equal to about 14 percent of its budget in 2007. Among the 10 agencies that obtained the most forfeiture proceeds, that figure soared to one-third. Between 2001 and 2007, law enforcement agencies seized and kept over 35,000 cars, homes and electronics, forfeiting more than $280 million. District attorneys have used these forfeiture funds on ridiculous purchases, including visiting casinos, a vacation to Hawaii and a margarita machine, as seen in the video below.
So as Trump sat there giving emotional support to Sheriffs, complaining about the unfair treatment of reforms and that troublesome document we call “The Constitution,” all I could think of was how I was told for over a year that he was going to be the “law and order” president. Who knew “law and order” would include supporting the shakedown of citizens and buying margarita machines and Hawaii vacations for government workers with funds seized from innocent people?
So here’s an excerpt from the recent discussion Trump had with Sheriffs from various counties. See the full transcript here.
SHERIFF AUBREY: And the other thing is asset forfeiture. People want to say we’re taking money and without due process. That’s not true. We take money from dope dealers —
Out: Due process, the idea that before depriving a citizen of life, liberty, or property, government must follow fair procedures. The promise of fair and just judicial proceeding. Like, for example, the conflict of interest in having someone who benefits from taking your property being the deciding vote on whether you get it back would be bad.
In: Due process, the idea that if law enforcement officers and attorneys say they think you’re guilty, they get to keep your stuff.
And Trump eats it up:
THE PRESIDENT: So you’re saying — okay, so you’re saying the asset-taking you used to do, and it had an impact, right? And you’re not allowed to do it now?
SHERIFF AUBREY: No, they have curtailed it a little bit. And I’m sure the folks are —
THE PRESIDENT: And that’s for legal reasons? Or just political reasons?
SHERIFF AUBREY: They make it political and they make it — they make up stories. All you’ve got to do —
THE PRESIDENT: I’d like to look into that, okay? There’s no reason for that. Dana, do you think there’s any reason for that? Are you aware of this?
And the beat goes on, and the beat goes on:
MR. BOENTE: I am aware of that, Mr. President. And we have gotten a great deal of criticism for the asset forfeiture, which, as the sheriff said, frequently was taking narcotics proceeds and other proceeds of crime.[*] But there has been a lot of pressure on the department to curtail some of that.
*Many times it’s what they THINK will be used for a crime. Unproven claims.
“Yes officer, I’m on my way to buy a car, here’s the information.”
“No, I think you’re on your way to buy drugs.”
“Because you have a lot of cash, and people who buy drugs have a lot of cash. Guilty. We’re taking your cash.”
THE PRESIDENT: So who gets it? What happens to it? Tell them to keep it?
MR. BOENTE: Well, we have what is called equitable sharing, where we usually share it with the local police departments for whatever portion that they worked on the case. And it was a very successful program, very popular with the law enforcement community.
Wait… Bonuses, vacations, and extra spending cash are “very popular”?
THE PRESIDENT: And now what happens?
MR. BOENTE: Well, now we’ve just been given — there’s been a lot of pressure not to forfeit, in some cases.
THE PRESIDENT: Who would want that pressure, other than, like, bad people, right? But who would want that pressure? You would think they’d want this stuff taken away.
“Bad people,” like these people, who just wanted to keep their kids out of foster care. The audacity. “Most infamously, police in Tenaha seized over $3 million from hundreds of drivers and even made “cash-for-freedom deals” with drivers. As The New Yorker reported last August, drivers “would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road.”
Or “bad people,” like James Huff, an 81 year-old man who had $8,400 seized when an officer was alerted to possible narcotics by a police dog after Mr. Huff denied entry for a search. (Spoiler: No drugs.) And due to a lack of notification from the attorney’s office, Huff’s paperwork wasn’t filed in time. “The notice gave no specifics, so Huff and his lawyers did not know that the notice was for his money. As a consequence, he missed the deadline to file a claim, and a judge ruled that he had lost the opportunity to challenge the seizure. The money was ordered forfeited by default. Prosecutors never had to demonstrate any connection whatsoever between Huff’s money and drugs.”
Or “bad people,” like 87 year-old Carla’s $2000. But good news, only $600 was seized, because the other $1400 just got lost in transit or something. Oops.
Or “bad people,” like the Christian rock group that had $53,000 seized. Thankfully, that one had a better ending after two months – TWO MONTHS – of a bureaucratic labyrinth. “The ordeal ended this week when the district attorney’s office dropped the case and admitted it had no proof that the more than $53,000 cops took from the band manager’s car in February was connected to drugs.”
SHERIFF AUBREY: You have to be careful how you speak, I guess. But a lot of pressure is coming out of — was coming out of Congress. I don’t know that that will continue now or not.
THE PRESIDENT: I think less so. I think Congress is going to get beat up really badly by the voters because they’ve let this happen. And I think badly. I think you’ll be back in shape. So, asset forfeiture, we’re going to go back on, okay?
SHERIFF AUBREY: Thank you, sir.
THE PRESIDENT: I mean, how simple can anything be? You all agree with that, I assume, right?
PARTICIPANT: Absolutely, yeah.
THE PRESIDENT: Do you even understand the other side of it?
I’m just spit-balling here, but that’s probably because they’ve never had their stuff stolen by the people they’re supposed to call if their stuff gets stolen.
MR. BOENTE: I don’t think we need any executive orders. We just need kind of some encouragement to move in that direction.
They just really want someone to tell them they can punish without conviction, Mr. President. Won’t you help?
THE PRESIDENT: Okay. Good. You’re in charge. (Laughter.) I love that answer, because it’s better than signing executive orders and then these people take it and they make it look so terrible — “oh, it’s so terrible.” I love it. You’re encouraged.
PARTICIPANT: Thank you.
THE PRESIDENT: Good. Asset forfeiture. You’re encouraged. Okay. Yes, sir.
So the big question is, what can YOU do?
Call. Your. Representatives.
What do you tell them you want? Start with this:
- I want the government to bear the burden of proof.
- I want officers to be encouraged to respect the 4th Amendment more than they’re encouraged to boost the vacation fund.
- I want to see citizens given due process in accordance with The Constitution.
- I want to see counsel granted to those fighting to get their own property back.
- Those I vote for need to support legislation that requires a conviction in order to retain an individual’s property.
Know how your state ranks by reading here:
Most importantly, get involved and educated on civil asset forfeiture. We need to make this an issue that is brought up during elections, and we need legislators to fight for the most basic of our rights. We need to give victims a voice, and we need legislators who support this legalized theft to be exposed as the big-government idealists they are. *cough cough* Jeff Sessions *cough cough*