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Civil Asset Forfeiture: ‘Policing for Profit’ on taxpayers backs

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Civil asset forfeiture allows government to confiscate a person’s property without charging that person with a crime. Per a new Texas Public Policy Foundation report, Taking Contraband Without Taking Our Liberties: Civil Asset Forfeiture Reform in Texas, Texas ranks amongst the nation’s worst when it comes to protecting its citizens from such abuses.

Here’s how it works:

In October of 2007, Roderick Daniels was traveling through Tenaha, Texas on US Route 59. Just outside of the city, he was pulled over for allegedly traveling 37 miles-per-hour in a 35 miles-per-hour zone. The officer then asked Mr. Daniels if he was carrying any cash. The very aim of the trip being to purchase a car, he revealed to the officer that he was carrying a substantial amount of cash; about $8,500. Little did Mr. Daniels know he was about to be become a textbook case of civil asset forfeiture abuse in Texas.

The officer promptly placed Mr. Daniels under arrest and transported him to the jail. It was here that Daniels was given an ultimatum: sign pre-notarized documents agreeing to forfeit the money and jewelry found in his car, or be charged with money laundering. Scared and far from home, Mr. Daniels complied.Ron Henderson and Jennifer Boatright had a similar experience with the Tenaha Police on US Route 59. While traveling through the area with their two children, they were pulled over and questioned as to whether they were carrying cash. They, too, were looking to purchase a used car and were carrying over $6,000. The officers began searching the car, turning up no contraband. Neither officer issued a citation for the alleged offense—driving in a left-hand turn lane—and Ms. Boatright and Mr. Henderson were told that they could either sign the same documents relinquishing all ownership interest in the cash or face money laundering charges. In addition, they were told that challenging the charge would result in them being placed in custody with their two small children being placed in foster care. The couple signed over their property rather than face the dissolution of their family.

Incidents such as these, while abhorrent, are not uncommon. In Tenaha alone, it is estimated that between 2006 and 2008 the police seized $3 million worth of property from motorists. Over 150 of these seizure cases are believed to be invalid. With only 923 residents and two sworn police officers, these enforcement actions represent a windfall to the Tenaha and Shelby County government and have the potential to underwrite a significant portion of their budget.

With Texas statutes containing few restrictions on civil asset forfeiture, state and local law enforcement authorities have found civil asset forfeiture a lucrative revenue stream. This practice occurs with entities either working on their own as described above or via “equitable sharing” arrangements through which state and local entities partner with federal law enforcement authorities in revenue-sharing programs offering a portion or sometimes the entirety of confiscated assets.

While such arrangements are seen as “compromising state sovereignty by partially surrendering the police power that is a core state constitutional function,” local agencies are attracted to the prospect of sharing as much as 80 percent of seized property’s total value.

Calling this practice “policing for profit,” the report contends a good deal of evidence suggests “law enforcement activities based solely on the potential payouts of forfeited property.” It describes that in a survey of 770 law enforcement agencies, “nearly 40 percent viewed the proceeds of civil forfeiture as a necessary supplement to their budgets.”

Again, though Texas offers few asset forfeiture protections to residents, research suggests equitable sharing agreements are used to circumvent safeguards in states that do attempt imposing such protections.

For many, criminal asset forfeiture is a more familiar concept as law enforcement agents make an arrest, confiscate property believed related to criminal activity and upon a finding of guilt or guilty plea, ownership is turned over to the state.

The report says this of civil asset forfeitures:

The practice of civil asset forfeiture operates in a more ambiguous area of law. Unlike legal action taken against a person under the allegation of criminal conduct, and all the procedural safeguards that entails, civil forfeiture targets the property itself, not the owner, and can occur regardless of whether any criminal charges are brought forth. These actions are a form of in rem proceedings, or accusations against property. This legal fiction of sentient property has led to nonsensical case names such as United States vs. $124,700 in US Currency, United States vs. One Pearl Necklace, and .39 Acres vs. the State of Texas.

Another ugly side issue of civil asset forfeiture surfaces with any attempts for property recovery. First, legal costs incurred in any recovery effort often exceed the property’s value thereby rendering recovery cost prohibitive. And since the seizing agency is acting within the law, forfeiture targets are not eligible to recover legal fees or punitive damages.

Many targets can’t afford a lawyer and with no damages recovery mechanism, securing an attorney on a contingency fee basis is unlikely. Public interest law firms may have an interest in such cases, but the volume of prospective cases usually outpaces the available resources.

Texas earned and overall grade of “D-” in a 2010 Institute for Justice Policing for Profit report. That grade was based on the state receiving a “D” for existing forfeiture protections and the amount of proceeds that directly benefit Texas law enforcement and an “F” for the state’s overreliance on equitable sharing.

In terms of the dollars generated by civil asset forfeiture, the report notes:

The prevalence of forfeiture in the State of Texas has followed the national trend. Both the sum value and per-capita dollars of seized property have risen rapidly while triggering events, as measured in both official and self-report data, have been plummeting. Of the $825 million reported above, $49 million were seizures reported by the 200 responding Texas agencies.

Equitable sharing payments have followed suit. In 2001, Texas received $19,668,285 from the federal government compared to $31,520,522 in 2012. This trend holds even in light of Texas’ skyrocketing population, growing from 92 cents to $1.21 per person for the same years, respectively. From 2000 through 2006, Texas received an average of 88 cents each year per capita, while this increased to almost $1.29 per person the period between 2007 and 2012, showing persistence even in the volatile data.

The report concludes that commonsense reforms are “easily attainable through simple procedural adjustments.” These reforms include:

  • Reverting the burden of proof to the state.
  • Elevating the standard of evidence sufficiency to trigger forfeiture.
  • Abolish the practice entirely.
  • Require the Texas Attorney General to approve equitable sharing payments.
  • Establish a common pool for holding forfeiture funds.
  • The limits of reporting mandates and restrictions on expenditures

Compared to other issues, civil asset forfeiture reform would seem relatively attainable. The question then becomes that as state and local agencies increasingly use these funds to supplement their budgets, might the political will for such reforms not be the real challenge?

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