Policing for Profit: If the Police Dept. Needs Money, They Can Seize Your Car, on Flimsy Pretexts
The topic of law enforcement gone awry has stirred tremendous controversy of late, and a new report from the Institute for Justice is bound to raise the stakes. The report, Policing for Profit, persuasively argues that modern asset-forfeiture laws actually encourage law-enforcement agencies to take powers created to punish criminals and instead use them against ordinary citizens. The numerous egregious abuses uncovered by the Institute for Justice could turbocharge a growing movement to reform asset-forfeiture laws.
The report’s catalog of wrongs will stand your hair on end. There’s the police department in Tenaha, Texas, that routinely stopped and searched out-of-state vehicles based on flimsy pretext and confiscated valuable property, all the while threatening to file charges if drivers refused to consent to seizure of their property.
There’s the family-owned Motel Caswell, which was seized by the federal government because it was supposedly a hot spot for drug activity, even though several nearby properties had a similar frequency of drug activity. The only difference between the hotels appeared to be that the government didn’t think Motel Caswell would put up a fight. There are numerous examples of parents who lost houses or cars because children, unbeknownst to their parents, used the property to deal drugs.
And then there are the cases in which the IRS or another agency, based on next to nothing, simply seized a personal or small-business bank account under suspicion of “structuring,” a crime that requires proof of intent to evade federal anti-money-laundering laws. Getting the seized money back costs time and legal fees. While these owners wait for justice, their businesses fail, their families struggle, and no criminal prosecution ever comes.
In most states, the law itself is stacked against the innocent property owner: Thirty-five states and the federal government take a seize-first-ask-questions-later approach, allowing the government to take property without proof that the owner was culpable and then require owners to prove their innocence to get the property back. Although all states require probable cause that someone committed a crime before seizure, only ten states and the District of Columbia require the government to show, before it seizes the property, that the owner was culpable.
Where does all this government power come from? The short answer is: English common law. For hundreds of years, the Anglo-American legal system has recognized that property obtained through crime or used to commit a crime is forfeitable, which means that if the government can show that a piece of property is connected to criminal activity, it can seize the property even though the person who owns it has not yet been convicted of any crime. Under broader laws enacted in the 1980s, if police can show that a particular car was used to smuggle drugs, they can seize the car without having to convict the car’s owner of a crime. This prevents criminal organizations from insulating themselves from law enforcement by simply registering all their property in the name of an innocent neighbor or grandparent.
Forfeiture is a powerful weapon. It allows prosecutors to deprive criminals of the benefits of violating the law, disrupts ongoing criminal enterprises, and helps ensure that victims or their families receive restitution before criminal defendants can hide stolen property or use it to fund their own legal defense. And whereas criminal forfeiture requires prosecutors to convict a defendant of a crime, the civil version of forfeiture allows prosecutors to pursue these same objectives even if the defendant has fled the jurisdiction, has died, or can’t be prosecuted for some other reason. But as Policing for Profit shows, this power can easily end up harming innocent people.
American forfeiture laws generally adopted a punitive approach similar to England’s at common law, though they dropped the legal fiction that property itself could be guilty and limited forfeitures to the duration of the criminal’s life. In this vein, the first U.S. Congress was markedly more lenient than the British Parliament in setting forfeiture-like punishments for smuggling offenses. And both British and American forfeiture law reduced the danger of forfeiture abuse by ensuring that revenues from confiscation accrued to the general treasury, not to individual officers or departments. This weakened the natural temptation for officials to use their powers for personal gain.
Yet, in the intervening centuries, federal and state governments have expanded forfeiture laws in ways that create perverse incentives. Policing for Profit identifies key problem areas, such as financial incentives for individual officials or their departments, a standard of proof (a mere preponderance of the evidence or 51 percent) that Institute for Justice believes is too low, and the practice of forcing innocent owners to prove their innocence in order to keep their property.
One of the most problematic innovations is “equitable sharing,” a 1980s-era federal program designed to do an end-run around state laws protecting citizens from overzealous forfeiture. Under equitable sharing, state law-enforcement agencies can invite the federal government to “adopt” assets obtained through state investigations; states can then use the more lenient federal laws to forfeit the assets. The federal and state agencies split the proceeds from a sale of the property, so state laws designed to protect property rights become a dead letter.
Equitable sharing may originally have encouraged more vigorous law enforcement on the state level, but the program is inherently dangerous because of the obvious perverse incentives it creates for officials who participate. Consider this: In all but seven states and the District of Columbia, at least 45 percent of forfeited property — and in many cases, 100 percent — can be directed to law-enforcement budgets. These arrangements encourage law enforcement to use forfeitures as a way to supplement agency budgets, drastically reducing accountability for police departments who are then no longer reliant on community representatives for funding. The classic “principal-agent problem” — the dilemma of conflicting incentives when one person (the agent) is empowered to make decisions on behalf of another (the principal) — then appears in the ugly ways identified by the report.
#share#Though most of the proposals in Policing for Profit will be attractive to a wide audience, proponents of aggressive law enforcement will find some of them less persuasive. As the report points out, civil forfeiture can result in confiscation of property without the owner’s ever being convicted of a crime “beyond reasonable doubt.” Even though civil forfeiture requires the government to prove that a crime occurred, the government doesn’t have to meet the high burden of proof applicable to criminal convictions. Instead, the government must prove the crime under the lower burden of “preponderance of the evidence” — 51 percent probability — that applies to ordinary civil lawsuits. Some will consider the lower burden of proof a good thing, arguing that it is necessary to reach the full scope of assets controlled by criminals.
Fixing asset forfeiture must start by ending the perverse incentives that lead to the most egregious abuses. Gains from forfeited property should be returned to victims and then the government’s general treasury, not distributed to law-enforcement agencies through “equitable sharing” arrangements. Reform must also address the problems that are unique to forfeiture procedures: We can elevate standards for warrantless seizures, shift all burdens of proof to the government, ensure quick return of erroneously seized property, narrow the scope of forfeiture laws that unjustly penalize innocent owners, and eliminate disproportionate punishments. Each of these problems requires focused attention at both state and federal levels to ensure that the law-enforcement officers who sacrifice for the public in so many other ways are not drafted into the role of tax collector for revenue-hungry bureaucrats.
At the same time, we should be careful to recognize the legitimate and important role that asset forfeiture plays in law enforcement. Forfeiture tools developed over hundreds of years to deal with the reality that criminals — especially organized networks such as gangs, drug traffickers, and smugglers of all sorts — shamelessly bully legitimate businesses and innocent relatives into “owning” cars, guns, and safe houses to insulate themselves from accountability. If avoiding asset forfeiture becomes as simple as transferring title to an intimidated neighbor, whole communities will suffer.
Although the most recent edition of Policing for Profit is unlikely to settle all of these debates, it makes an invaluable contribution by providing hard information about the trends in police behavior. When Congress finally moves on asset-forfeiture reform, the Institute for Justice should get much of the credit for spurring it onward.
— Jonathan Keim is counsel for the Judicial Crisis Network and a former prosecutor.