The cases border on parody, and they have a peculiar ring: United States v. One 1987 Jeep Wrangler, United States v. $25,180.00 in United States Currency, or United States v. 64,695 Pounds of Shark Fins. Unlike the vast majority of legal suits, it’s not a person or group pitted against another. Instead, these cases are an odd mixture of precisely defined defendants and a familiar plaintiff, the United States.
Law enforcement categorizes these as “civil asset forfeiture” cases. Under current law, police can withhold possessions involved in crimes, such as cars suspected of being stolen, until their “innocence” is decided. Bizarrely, in these cases, police essentially charge pieces of property — rather than people — with crimes. Most alarmingly, courts presume items guilty until proven innocent. In order for individuals to regain possession of their confiscated property, they must disprove any involvement in criminal activity, and further prove that they had no knowledge of the property’s involvement in such activity.
According to the US Marshals Service, the forfeiture program has “become a key part of the federal government’s efforts to combat major criminal activity by stripping criminals of their ill-gotten gains.” Yet, local law enforcement officials tend to play it fast and loose with the rules. One needs to look no further than the Marshals’ auction list to see the types of goods the agency peddles: a 1981 Rockweel Internation Sabreliner 65 jet, a Cadillac Escalade, and two boats, among other things. Not surprisingly, during times of financial turmoil — from 2008 to 2014, for example — the raw amount of cash brought in by the civil asset forfeiture program really started to kick up. As Dick Carpenter, author of the Policing for Profit report, summarized, “forfeiture is an attractive way to keep revenue streams flowing when budgets are tight.” From 1986 to September 2015, the civil asset forfeiture program grew from collecting $93.7 million annually to a colossal $3.1 billion, with 17,564 items. This might not even represent the full scope of the problem, because many collections are veiled in secrecy.
Even though the practice is directed at major criminals, more often than not, it’s regular folks — not mob bosses — who get caught in the crosshairs. In a 2011 case, local police tried to seize a family’s motel under the auspices that illicit drug activities had been performed inside. Though the owners proved they weren’t involved whatsoever — and even called police themselves to report the incidents — the family’s motel was taken. Over 14 years, 200,000 rooms were rented in the motel, and only 15 individuals were accused of selling or using drugs. Though other properties nearby had similar things happening on their premises, none were seized. Since police departments pocket all the proceeds of the sale of the property confiscated in civil asset forfeiture cases, it’s within their interest to claim properties with the highest cash value and lowest outstanding liabilities. In the case of Motel Caswell, the fact that the family had a full equity stake on the $1.5 million property made it an attractive prospect for forfeiture. And some officials advertise their financial interests with surprising candor. Recounting a case involving the forfeiture of a Mercedes, the city attorney of Santa Fe described the car as “just so beautiful” and undercover cops’ reaction to it as an orgasmic “Ahhhh.”
Whatever police departments confiscate from a person, they are legally allowed to keep, so incentives play a key role in skewing the types of items seized. After pulling over a suspicious-looking (or maybe just expensive-looking) vehicle, officers will commonly ask vague, baiting questions such as, “Do you have large sums of money in the car?” The responses of the individuals nearly always give police the authority to search — and seize — the vehicle. Nearly 90% of cases pursued operated under civil proceedings, which allows for some neat sleight of hand. In civil suits, unlike criminal suits, police don’t have to actually convict anyone to take their property, thus opening the door for manipulation by financially motivated police officers. Under “equitable sharing” provisions, 42 states allow officers to keep at least 45 percent of the assets seized, with 34 of those states allowing them to keep an astonishing 80-100% of the profits. Such workings don’t do justice to the spirit of the law governing these cases, which was intended to emphasize major criminal actions, not petty offences.
Even though the practice is directed at major criminals, more often than not, it’s regular folks — not mob bosses — who get caught in the crosshairs.
Even attempting recourse is an exercise in futility. Petitioners have to jump through absurd hoops just to have their cases heard. Washington, DC charges up to $2,500 simply for the right to challenge a police seizure in court, which can take months or even years to resolve. To make things worse, thanks to a 1984 law, defendants can’t be provided a court-appointed attorney. That’s a big reason why more than 80 percent of federal seizures are never challenged in court. Predictably, those who bear the greatest burden have a particular profile. ACLU researchers determined that 85 percent of proceeds from federally seized assets in California go to agencies that police communities of color. Higher per-capita seizure rates were found in areas with annual household incomes below the state median. Cities like Albuquerque, New Mexico are particularly heinous offenders: from 2010 to 2015, the Albuquerque Journal reports that the city has seized 8,369 vehicles and collected more than $8.3 million, an average of about $1,000 from every case, according to city documents. This is happening all around the country, and in each case, cash is being sucked right out of the pockets of mostly poor Americans for relatively insignificant offences.
And it’s not even the case that this confiscated money is being put to use. One analysis discovered 15 Mercedes, 12 Mustangs, BMWs, and two Corvettes converted into police cruisers. About a fifth of the profits spent nationwide get lumped together under the unaccountable term “Other.” Even more troubling, states keep very few records of their collections. Only 12 states have relatively solid accounting procedures over longer time spans, while the rest keep it mostly under wraps. While auditing the federal program’s most recent financial statements, the accounting firm KPMG discovered that officials understated the total resources available to the branch by $83.6 million, and tens of millions of dollars went unreported to the US Treasury. That number doesn’t even start to consider states that don’t provide detailed records.
Legislators have offered propositions to tackle the alarming issues that civil asset forfeiture present, but they have stalled. The pot hasn’t been stirred since Congressman Ted Lieu’s (D-CA) bill regarding the seizure of cannabis was referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations in October of 2015. That bill only sought to attack a slice of the problem: seizure of cannabis. In 2014, Senator Rand Paul (R-KY) introduced the Fifth Amendment Integrity Restoration Act (FAIR), which rightly highlights the abridgment of due process involved in civil asset forfeiture case. In effect, it would raise the federal government’s burden of proof in relevant cases to “clear and convincing evidence” of intentional offense. It also diverts proceeds from the DOJ’s pocket to the Treasury’s, which eliminates the incentive for officers to shake down suspects. These measures, however, don’t go nearly far enough.
What we need is a radical restructuring of the civil asset forfeiture system. Standards for seizure of assets should be made crystal clear: if evidence of illegal activity isn’t explicit, no officer should be allowed to confiscate the items. Law enforcement officials must actually convict a person of wrongdoing before redeeming their assets. Reversing the presumption of guilt is crucial, but there’s more work to be done to balance the scales of justice. Senator Paul’s effort to reemphasize the spirit of the Fifth Amendment plays an important role in reforming civil asset forfeiture law. However, stressing the guarantees of the Sixth Amendment — the right to a lawyer, most relevantly — will go a long way too. The Civil Asset Forfeiture Reform Act of 2000, or CAFRA, supposedly put this issue to rest, but an obvious flaw has ruined it. The government only pays for cases that end in an acquittal; but in most cases, simply making the first step to hire an attorney is too big a hurdle — and too large a wager. If the government provided an attorney a priori, as it should, there would be more trials and likely a lower conviction rate.
Lawmakers should ban equitable sharing provisions in their current practice. They only serve to push officers to gather as much valuable property as possible, without much regard to fairness. If it’s truly a matter of funding that motivates the continuation of this program, police departments should look to state and federal budgets instead of grabbing cash from people at will. Perhaps shifting the majority of the proceeds to the federal government would avoid some issues, by removing the personal interests of local officers from the equation. Though that may encourage federal authorities to take the helm, they aren’t as able as local officers to pursue the exploitation of forfeiture on a wide scale. What’s most important is twofold: that proceeds from forfeiture are not be controlled by those who seize them, and that the accounting procedures need to be lifted from the shadows.
Unless changes like these are made, seizures will continue to be an ugly taint on our criminal justice system, and yet another that slams innocent, poor communities of color the hardest. Civil asset forfeiture, as it stands, crafts a wild west of sorts. If strict rules aren’t fashioned and penalties aren’t enforced, bandits in official uniforms will keep shaking down average people. Communities bestow trust upon police officials, and expect that they protect and serve rather than pillage. People expect police to defend them from crooks, not join their ranks.