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Archives for August 6, 2019

What is Civil Forfeiture?

Written by Dick Carpenter II

On February 27, 2016, Eh Wah was driving home to Dallas through Oklahoma when the Muskogee County sheriff’s deputy stopped him for a broken brake light. The reserved 41-year-old U.S. citizen was the volunteer tour manager for a Burmese Christian band. The band had been touring the United States raising money for the Dr. T. Thanbyar Christian Institute, a nonprofit Christian liberal arts education institution in Burma. They entrusted Eh Wah to carry the funds. During the stop, the deputy searched Eh Wah’s car and found the cash—more than $53,000 in all. The deputy alleged a drug dog had alerted at the scene, but they did not find drugs or drug paraphernalia.

Eh Wah’s Civil Forfeiture Case

After interrogating Eh Wah for about six hours, the Muskogee County Sheriff’s Office released him after midnight but kept all the money as supposed “drug proceeds.” Eh Wah is no drug dealer, and the money in his car was in no way connected to drugs. Eh Wah shares his home with his parents and mentally disabled brother. He neither smokes nor drinks. A church pastor who has known him since he was a boy describes him as the last person who would ever get into trouble. His only prior run-in with the law was a 2001 traffic ticket. As detailed in a ledger, Eh Wah and the band maintained, most of the money was raised at the 19 concerts the band had already played. As the band’s tour manager, Eh Wah had simply been taking the money home for safekeeping.

The Muskogee County Sheriff’s Office released Eh Wah with a warning for the defective brake light. But, it still filed a forfeiture case, State of Oklahoma v. $53,234 Cash on March 11, 2016, to permanently keep the seized currency. Eh Wah was neither charged with nor convicted of a crime, and there was no evidence linking the money to any criminal activity. Yet, the government moved to keep the money permanently.

This is civil forfeiture in the United States of America.

What is Civil Forfeiture?

Civil forfeiture is a mechanism by which law enforcement can seize and keep property on the mere suspicion it is connected to a crime. Criminal forfeiture, where law enforcement takes property after a criminal conviction. In contrast, civil forfeiture allows law enforcement to take property from innocent people—like Eh Wah—who have never been formally charged with a crime, let alone convicted of one. This evasion of the criminal justice system is based on a legal fiction: the government proceeds against the property directly as if the property itself assisted in the commission of a crime.

The History of Civil Forfeiture Laws

You can trace America’s civil forfeiture laws to 17th-century English maritime law. Maritime law permitted courts to obtain jurisdiction over property when it was virtually impossible to obtain jurisdiction over owners—pirates, for example—who had violated the law. Civil forfeiture remained a relative backwater in American law for much of the nation’s history. Its use expanded greatly during the early 1980s with the War on Drugs. Today, unmoored from the practical necessities of enforcing maritime law, civil forfeiture is a popular tool of law enforcement.

Civil Forfeiture: Policing For Profit

Proponents of civil forfeiture argue it fights crime, both by removing assets required for certain criminal activities—a proposition with almost no empirical support—and by reducing the profitability of crime. But reducing the profitability of crime can itself be profitable.

Forfeiture laws at the federal level and in most states award a portion, and sometimes all, of the proceeds from forfeited property to law enforcement agencies for their own use.

The laws in some jurisdictions even allow agencies to use forfeiture proceeds to pay salaries, benefits, and overtime. So, law enforcement personnel can derive a direct personal benefit from forfeiture. Allowing agencies to reap financial rewards from forfeiture can distort law enforcement priorities. The focus shifts from fighting crime to generating revenue.

Faced with a choice between seizing money and interrupting the flow of illegal substances, law enforcement is often choosing the former.

In fact, the bad incentives in forfeiture laws have given rise to a detectable pattern along the nation’s interstates. Law enforcement agencies engaged in drug interdiction are now setting up forfeiture patrols primarily on one side of a given highway—the side smugglers were more likely to use to transport money than drugs. For example, a Tennessee news investigation found police made 10 times as many stops on the westbound side of Interstate 40. On Interstate 40, smugglers transport drugs to the East Coast on the eastbound side and haul cash back to Mexico on the westbound side.

Your Assets are Guilty Until Proven Innocent

The bad incentives they create are not the only problem with civil forfeiture laws: They also turn the presumption of innocence on its head. In a criminal case in the United States, the government must prove its case against the accused, who is presumed innocent. If it cannot, the accused goes free. The burden of proof lies with the government. But in civil forfeiture in most states and at the federal level, the burden rests on the owner of seized assets, who must prove that the assets were not related to criminal acts. The owner is, in effect, guilty until proven innocent.

The Cost of Fighting a Civil Forfeiture Case

This puts owners at a significant disadvantage and makes the process of forfeiting property easier for law enforcement. The process of fighting a forfeiture is so difficult, in fact, most owners likely choose not to fight for the return of their property. There are at least three reasons for this:

  1. The practical burden of fighting a forfeiture includes finding an attorney. For most Americans, retaining a defense lawyer skilled in forfeiture litigation is not a familiar task
  2. The process often includes filing court documents and paying various fees—both to the court and to an attorney
  3. Trying to regain property often requires at least one, if not multiple, court appearances

Faced with these hurdles, a rational property owner may decide fighting a forfeiture is too much trouble. Particularly, when seized property is worth less than the monetary and opportunity costs associated with retrieving it. Indeed, the value of seized property is often small. Forfeiture data from Georgia show the median value of seized property is $647, while data from Minnesota show an average value of about $1,000. It is no wonder, then, that owners rarely pursue the return of their property.

Civil Forfeiture Statistics: Perverse Incentive

Civil forfeiture laws put owners at a significant disadvantage while incentivizing law enforcement to engage in and succeed at forfeiting property—and succeed they have.

Since 2001, the federal government took in almost $40 billion through forfeiture.

State and local law enforcement took in hundreds of millions more, although the exact number is unknown since many states do not require agencies to track or report their forfeiture activity.

To the extent people know about civil forfeiture, it’s primarily due to intensive investigative work by journalists at The New Yorker, the Washington Post, the Miami Herald, the New York Times, and other media outlets.

Alda Gentile’s Civil Forfeiture Case

That was exactly how Alda Gentile’s story came to light. Gentile, her son, and her grandson were driving home to New York after looking at condos in Florida. In Gentile’s trunk was $11,530 the Long Island grandmother had taken along in case she wanted to put a down payment on one of the condos. Fourteen miles inside Georgia, state troopers pulled them over for speeding.

During the stop, officers asked the family if they had any bombs, drugs, guns, or money in the car. Gentile mentioned the money in her trunk. The troopers called in a drug dog to search the vehicle but found nothing illegal. After detaining the family for six hours on the side of the road, the police seized the cash, issued a speeding citation, and sent them on their way. Alda’s story appeared in the local newspaper and her attorney brother initiated legal action. Months later, she finally received her money back. Alda’s story is not an isolated incident.

According to the Institute for Justice, the U.S. Department of Justice took more than 635,000 properties between 1997 and 2016, with state and local agencies taking countless more.

The sheer scope of forfeiture means this is not a problem of a few rapacious police officers exploiting motorists. This is a problem of bad laws desperately in need of reform.

Civil Forfeiture Reform

Civil Forfeiture reform should take two primary forms. Legislatures should abolish civil forfeiture and replace it with criminal forfeiture. And, all proceeds should be sent to a neutral fund, such as a state general fund.

When proceeds don’t hit law enforcement budgets directly, we’ll end policing for profit.

How You Can Help Reform Civil Forfeiture Laws

Everyday citizens can help facilitate such reform in at least two ways:

1. Contact State Legislators and Members of Congress

You can contact state legislators and members of Congress to express support for reform bills. An increasing number of such bills are being introduced each year. Calls, letters, emails, and social media contact can be influential in convincing elected officials of the need for reform. End Forfeiture provides information about forfeiture legislation, plus general background about the issue.

2. Support Civil Forfeiture Reform Organizations

You can financially support the work of organizations active on this issue. The leading organization in the country is the Institute for Justice (IJ). IJ is a nonprofit, public interest law firm that represents people caught in the civil forfeiture web. In addition to helping clients realize the return of their properties, IJ also seeks to use those cases to achieve broader legal change through the courts. The firm also works in legislatures to advocate for reform and has produced a dozen original research reports on forfeiture. IJ is the leading organization, but it is not alone. Others include the ACLU and nonprofit investigative journalism groups, such as the Midwest Center for Investigative Reporting. These organizations operate with the support of donors to reform civil forfeiture laws.

It’s Time to End Policing for Profit

Each year, tens of thousands of people lose cash, cars, electronics, jewelry, homes, and even entire businesses through this scheme. No one should lose their property to forfeiture without a criminal conviction. Law enforcement should not benefit financially from the outcome of cases. It is time we end policing for profit.

Dick Carpenter II is a professor at the University of Colorado, Colorado Springs and the Director of Strategic Research at the Institute for Justice. He presented at TEDxMileHigh Humankind in 2019. Learn more about Dick here.


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