Asset Forfeiture

Radley Balko has a story in the Jackson Free Press noting that the Supreme Court has decided to hear a disturbing asset forfeiture case from Illinois. In case anyone needs a refresher on the absurdity of our forfeiture laws, this sums it up nicely: 

Civil asset forfeiture is a particularly odious outgrowth of the drug war. While few would argue that criminals ought to be able to keep the proceeds of their crimes, civil forfeiture allows the government to seize and keep property without actually having to prove a crime was committed in the first place. Hence, forfeiture cases tend to have names like U.S. v. Eight Thousand Eight Hundred and Fifty Dollars, or U.S. v. One 1987 Jeep Wrangler. Proceeds from civil forfeiture at the state and local level usually go back to the police departments and prosecutors' offices, giving them a clear and unmistakable incentive to seize as much property as often as possible.

Balko goes on to explain why the Supreme Court isn’t likely to curb the practice and I agree with his analysis. Hopefully, however, the case will at least afford us a rare opportunity to spark national discussion about the chronic abuse of asset forfeiture laws.

As sad as this sounds, the best case scenario here might a New York Times headline that reads "Supreme Court Rules Police May Confiscate Property Without Evidence of a Crime." If nothing else, I hope we can all at least acknowledge that this is happening.

It is not at all uncommon for the war on drugs to target the very last people among us who ought to be treated as criminals:

For example, the 90-year-old couple, Lester ("Smitty") and Mary Smith--who were raided at their Philo home last week (9.24.08) with law enforcement seizing their life savings and all their plants in the process--are qualified patients with doctors' approvals and did nothing wrong.

Smitty said, "I wasn't worried a bit. I knew it was legal. I planted six plants two years in a row and this year, I planted 17 for me and Mary. That's not too many is it? My wife is very ill, confined to a wheelchair or recliner. She likes the bud tea. She has severe arthritis. It makes it easier for her to get around. She walks easier; she can walk to the bathroom even by herself."

Smitty has health issues too. "I have heart problems, blood clots, stomach cramps, emphysema, bad hips. I've had a heart attack. I sometimes get strong chest pains and can't breathe right. I take nitroglycerine. That brings me back. My doctors want me to take more x-rays here locally but that would be a big expense. Usually, I go to the Veterans Hospital and they pay for it."

Mary Smith was forced to stay in the house by herself during the 5-hour raid while additional warrants for an adjoining parcel were telephoned in and delivered, allowing sheriff's deputies to enter all the residences.

The elderly Smiths were not arrested or charged with a crime, because there was none. Sheriff's deputies were apparently more interested in robbery than arrest (excuse my french). They seized the two things that mattered most to the ill couple--their medicine, all 17 plants, leaving nothing--and their life savings, $52,000 from Mary Smith's inheritance and $29,000 in cashed in CDs.

"As soon as the bail-out hit, I cashed in my CDs and put the money in a safe in my house. I did not sell pot to get it. But turns out my money was not safe. They stormed in here and turned our world upside down. I thought I was legal." [IndyBay]

This is the real war on drugs. It’s not some magic formula that only screws over bad people. The drug war proliferates injustice everywhere it goes.

Pete Guither pointed out the other day that the Republican platform contains this vague statement on victim’s rights:

The innocent have far fewer rights than the accused. We call on Congress to correct this imbalance by sending to the states for ratification a constitutional amendment to protect the rights of crime victims.

I wonder if such a law would protect victims of armed robbery when police search their home, arrest them for marijuana, confiscate even more of their money than the robbers did, and ultimately decline to investigate the initial robbery for which they were called in the first place.

Victim’s rights is an interesting idea. Let’s talk about it after we end the drug war.

Drenched in tequila, the brave men who fight the war on drugs will be the first to tell you that our asset forfeiture laws are a vital resource for law-enforcement:

IN 2005 the Montgomery County district attorney’s office held a party at the county fair in east Texas. They had beer, liquor and a margarita machine. The district attorney, Mike McDougal, at first denied that this had been paid for by drug money. He acknowledged that his office had a margarita machine at the fair. In fact, he said, they won first prize for best margarita. But he insisted they came by it fair and square. In any case, he pointed out, the county’s drug fund was at his discretion. Under Texas forfeiture law, counties can keep most of the money and property they rustle up.
…

Mr. McDougal…fessed up in the end about the margarita machine. [Economist]

It really more or less speaks for itself. They spent confiscated drug proceeds on booze, won an award for their awesome margaritas, and then lied about it. These are the people that will put you behind bars for smoking marijuana. They are the champions in the fight against drug abuse and they are as good at putting people in jail for drugs as they are at mixing alcoholic beverages.

Literally drunk on their own power, the hypocrites on the front lines of our war on drugs ought to arrest themselves if they ever sober up.

A disturbing report from NPR illustrates that many police departments have become dependent on confiscated drug proceeds in order to fund their anti-drug operations:

Every year, about $12 billion in drug profits returns to Mexico from the world's largest narcotics market — the United States. As a tactic in the war on drugs, law enforcement pursues that drug money and is then allowed to keep a portion as an incentive to fight crime.
…

Federal and state rules governing asset forfeiture explicitly discourage law enforcement agencies from supplementing their budgets with seized drug money or allowing the prospect of those funds to influence law enforcement decisions.

There is a law enforcement culture — particularly in the South — in which police agencies have grown, in the words of one state senator from South Texas, "addicted to drug money."

Just pause for a second and think about the implications of a drug war that funds itself with dirty money. It is just laughable to think that such conditions could exist without inviting routine corruption, from our disgraceful forfeiture laws to the habitual thefts and misconduct that occur with such frequency that we're able to publish a weekly column dedicated to them.

It is truly symbolic of the drug war's inherent hopelessness that illicit drug proceeds are needed in order to subsidize narcotics operations. If we ever actually succeeded at shrinking the drug market, we'd be defunding law-enforcement! Progress is rather obviously impossible under such circumstances.

Drug enforcement is a job like any other, and police have mouths to feed, bills to pay, maybe a little alimony here or there. So they take their paycheck and sign out; I don’t blame anyone for that in and of itself. But consider that law-enforcement operations artificially inflate the value of drugs, only to then hunt down those same proceeds, collect, and redistribute them within the police department. Morally, is that any better than the dealer who pushes dope to put food on the table?

Really, a structure such as this is not designed to achieve forward momentum towards reducing drug abuse. It's the law-enforcement equivalent of subsistence farming and it ought to warrant income substitution programs not unlike those we push on the peasants of Colombia and Afghanistan. All of this lends substantial credence to the popular conception that "the drug war was meant to be waged, not won."

Each day that the drug war rages on, its finely tuned mechanisms become more effective at sustaining itself and less effective at addressing the issues of drug abuse and public safety that supposedly justify these policies in the first place.

Researchers at Dartmouth have provided further confirmation of the popular rumor:

A UMass Dartmouth chemistry professor's study detected trace amounts of cocaine in 67 percent of the dollar bills researchers collected in Southeastern Massachusetts during the past two years.

"I hope this can give objective data so law enforcement can take the right measures to eliminate, or reduce, these kinds of problems and increase the community's security," Mr. Zuo said. [southcoasttoday.com]

I'm not sure what he means here. Obviously, the drug war is precisely the reason we all have drugs stuck to our money. The drug trade is a cash-only business, thanks to prohibition. So every time you reach into your wallet, the far-reaching consequences of our disastrous war on drugs will literally stick to your fingers. There's nothing law-enforcement can do about that, except speak out against this mindless crusade.

Really, if there's anything worthwhile to be learned from all this, it's that police must stop confiscating people's money every time a drug sniffing dog hits on it. Over and over we learn about naïve citizens losing their life-savings under our forfeiture laws, often based largely on that singular and clearly absurd criteria.

Having traces of drugs on your money doesn't mean you're a drug dealer. It just means you live in a nation with a massive, out of control war on drugs that infects everything it touches.

I received this email through the Flex Your Rights website a few weeks back and found it quite disturbing, though perfectly typical and unsurprising by drug war standards:

I'm a retired police lieutenant from a large midwestern city. Prior to my retirement my department, like so many others, saw dollar signs when new laws in response to the "drug war" (gawd, what a mistake THAT has turned out to be) allowed law enforcement to seize property with either flimsy or non-existent probable cause.

Special police units were posted on the expressways leading into the city with instructions to stop as many cars as possible, search them and the occupants, and if anyone had more than a few dollars, SEIZE IT.

Our command staff gleefully reported to us that the burden of proof was on the citizen to prove that the money was NOT drug proceeds, and since the amount of money seized would often be less than the amount that the citizen would have to spend to sue us, that we could be assured of keeping the bulk of the money.

I was flabbergasted. To make things worse, part of my yearly performance rating as a police lieutenant was based on how much money and other real property, such as cars, that my troops seized. On my instructions, my troops never seized a dime.

Turning law enforcement officers into bounty hunters is one of the most tragic mistakes this country has ever made.

Keep up the good work.

Lieutenant Harry Thomas (ret.)

I can't verify any of this, but I really don't need to. Lt. Thomas describes the asset forfeiture epidemic that corrupted law enforcement agencies throughout the nation, necessitating the formation of Forfeiture Endangers American Rights (FEAR) in 1992 and the passage of the Civil Asset Forfeiture Reform Act of 2000. And now that forfeiture laws have been "reformed," police have since felt free to continue confiscating property under the most ludicrous circumstances because the drug war says it's ok.

Lt. Thomas's story provides a particularly disturbing picture of police officers being commanded by their superiors to operate as an extortion ring. The recognition that citizens would have a difficult time proving their property "innocent" demonstrates an unconscionable willingness to seize property from law-abiding citizens. Put simply, the behavior described above is theft in both effect and intent.

Make what you will of this particular account, but if you think that one could implement forfeiture laws such as ours without provoking this exact behavior, then I dare you to put your life savings in a briefcase and drive around Indiana consenting to police searches.

One of our readers sent in the following observations about asset forfeiture and its impact on investing (and consequently economic development) in neighborhoods that are perceived to have illegal drug problems. (Forfeiture is not solely limited to drug cases, but drugs are the mainstay.)

I am in the real estate investment business. Increasingly I find investors staying away from investing in rental properties and neighborhoods perceived to have illegal drug problems. Investors more frequently state police can too easily forfeit their real estate because of one tenant's illegal activity at a rental property, e.g., selling drugs, even when it is unknown to the owner. Consequently investors' fears of forfeiture are depressing property values in certain neighborhoods and cities, driving downward the property tax base needed for tax revenues to support the infrastructure of the community. Consider: As governments more and more force landlords to act as attorney generals policing the lives of their tenants, and hold landlords accountable to police for not stopping their tenants from committing unknown or foreseen illegal acts, more investors say, "who needs this!" Constant police raids in certain neighborhoods may actually result in a financial net loss to a community where investors retreat, causing assessed property values and property taxes to decline. There is little incentive for investors to spend money upgrading rental property in neighborhoods where drug problems exist if the police are targeting rental property for asset forfeiture.

I think that pretty much speaks for itself. But it would be a shame to stop there. So, a few links:

• click here to read how the Fulton County (Atlanta, GA) DA's office spent forfeiture funds on banquets and balloons and a superman costume;
• click here to read about the Austin, Texas police department's criminal inquiry into possible misuse of forfeiture funds; and
• click here for a recent report over what is basically an act of theft via forfeiture committed by New Mexico police. (Make them stop, Gov. Richardson!)

Read our asset forfeiture reporting on an ongoing basis here, or subscribe to it by RSS here. And of course, check out the organization Forfeiture Endangers American Rights (FEAR).

Some good news on the forfeiture front, via TalkLeft: California's Supreme Court has found that city ordinances allowing the seizure and forfeiture of vehicles that police claim were used in the commission of minor crime's (including drug possession) are not authorized by state law, overturning a law passed by the city of Stockton. We'd rather they threw the law out because it's disproportionate and corrupting of police agencies, and because taking people's cars is theft. But we'll take it.

Via Rogier van Bakel, here's another example of gratuitous malfeasance courtesy of the war on drugs.

From the Milwaukee Journal Sentinel:

The Milwaukee Police Department is accused of taking possession of a Mercedes-Benz convertible from a drug-addicted local businessman in return for agreeing not to prosecute him for cocaine possession.
…

"In brief, the family claims Beck did this only because it was threatened that the fact he had been arrested would be affirmatively disclosed to his former wife's attorney to be used against Mr. Beck in a child custody matter."

Again and again, we discover our public servants perverting justice and jettisoning any remote appearance of caring about the law. The complete moral bankruptcy of the drug war becomes particularly vivid when police start offering to drop charges in exchange for luxury sports cars.

Of course no such incident would be complete without the obligatory nonsensical rationalization from the local prosecutor:

"The drug violation in this case, . . . possession of cocaine, is among those violations for which a vehicle is not subject to forfeiture," [Milwaukee County district attorney, E. Michael McCann] wrote. "We believe the officers acted in good faith under this creative interpretation in justifying securing Mr. Beck's car, but it cannot stand up as a matter of law."

Ok, if something "doesn't stand up as a matter of law" that means it's illegal. It's not a "creative interpretation" of some otherwise appropriate sanction, and police shouldn't be administering punishments anyway. Of course Mr. Beck ultimately wasn't punished, because the police department accepted a bribe instead. That's called extortion.

Equally preposterous is McCann's casual determination that the officers acted in good faith. The "good faith" doctrine forgives police for actions they believed to be legal (i.e. executing a flawed warrant), but it requires some vague pretense of reasonableness. Calling something like this "good faith" is an extremely generous, but obnoxiously typical, prosecutorial response to police misconduct.

As long as prosecutors persist in redefining misconduct as "creative" or "good faith" policing, we should expect plenty more of it.