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Forfeit justice

In the USA, asset forfeiture is rife, the modern concept of seizure having developed from a 200-year-old notion that property could be tried and found guilty. But civil forfeiture requires no hearing and those whose property is seized by the authorities may never have been convicted of a crime. Authorities now act as pirates, in a way the early laws were intended only to hinder actual pirates.

One of the first guilty pieces of property in American history was a Spanish pirate ship called the Palmyra. On August 15 1822, with waves spraying her sides and weapons trained on the Spanish ship, the American war vessel Grampus seized the Palmyra. On charges of “piratical aggression” and “plunder”, the United States Supreme Court ruled the vessel forfeit, even though no humans were found guilty. The ship itself was guilty.

The idea that property can be guilty of a crime lives on today through the practice of civil asset forfeiture. Criminal forfeiture requires a trial and a guilty verdict before the government can take someone’s property.

Civil forfeiture skips this step. Conviction is not necessary, and often those who lose their property never get their day in court. Even if the owner is proven innocent, they may not get their property back. In legal-speak, civil forfeiture is in rem, meaning it is against the property.

Today, the federal government and nearly every state in the country have provisions for civil forfeiture. In 2013, the Department of Justice collected more than $2 billion in forfeited assets, from both civil and criminal forfeitures. In every jurisdiction, law enforcement uses civil forfeiture differently, but in some cases authorities walk a fine line between policing and pirating, adding the proceeds of forfeiture to their bottom line.

One federal programme called “equitable sharing” encourages policing for profit, by allowing state and local police to cash in on forfeitures that their own state laws explicitly forbid. Equitable sharing stays out of most headlines, but it is a central cog in a robust and entrenched national infrastructure dedicated to taking property from people who may have never been convicted of a crime.

Some states limit civil forfeiture, or discourage abuse by keeping its proceeds out of police department budgets. As of August 1, Minnesota will be the most recent state to crack down on civil forfeiture. But in the shadow of equitable sharing, it is unclear how much states can do to curtail the excessive use of forfeiture.

Out of the sea

Civil forfeiture emerged from maritime law. Lee McGrath believes it made sense in this context. McGrath is the executive director of the Institute for Justice Minnesota, a libertarian civil liberties law firm that has done extensive work on civil forfeiture.

“Three hundred and fifty years ago, the king of England was very upset. The shippers and merchants weren’t paying their tariffs and their duties, but he couldn’t get his hands on the owners of the ship”, McGrath explains. If the owner of a ship was unavailable, unknown, or outside a court’s jurisdiction, the court could simply find the property guilty. Such seizure in English maritime law informed the Supreme Court’s decision about the Palmyra.

In 1862, Congress passed the second of the Confiscation Acts, aimed at suppressing Confederate rebellion through the seizure of rebel property without a criminal conviction.[1] It is important to note that this law also provided authority to free slaves from their owners, in one of many steps toward abolition. Later, under the National Prohibition Act of 1919, authorities would seize more than 5,000 vehicles connected with bootlegging every year during prohibition.[2]

Civil forfeiture has gradually become a regular extension of what we outlaw. In a way, it is logical that authorities would be able to seize banned assets or material, such as child pornography, improperly hunted animal products, or illegal weapons.

Thus, civil forfeiture was a natural tool for the war on drugs. In 1970, the Comprehensive Drug Abuse Prevention and Control Act allowed for the civil forfeiture of controlled substances, any materials or equipment used to produce those substances and any vehicles used in their distribution.[3]

The Comprehensive Crime Control Act of 1984 created the equitable sharing programme, which authorises the federal government to adopt seizures made by state and local agencies, and hand out cash in return. In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA), which tightened some restrictions on civil forfeiture at the federal level, but left equitable sharing intact.

Jeff Holcomb is a professor of criminal justice at Appalachian State University and has done extensive research on civil forfeiture and equitable sharing. He explains: “Equitable sharing was something that the law enforcement lobbies fought to keep after CAFRA. That was something that they wanted to have because they knew it was a tool that allowed them to circumvent their more restrictive laws.”

Throughout American history, civil forfeiture has slowly progressed from a tool used against pirates, to a practice that makes police resemble pirates. Today, civil forfeiture is everywhere. In 2013, the Department of Justice “equitably shared” about $657 million with state and local law enforcement agencies. But more troubling is what we don’t know.

Holcomb believes that, “One of the real scandals is that many states cannot even tell you how much money they collected through their state asset forfeitures. They don’t record them, or they don’t make it public.”

Justice seized

For those who have never seen this side of the justice system, it may be hard to imagine what civil asset forfeiture looks like. It would take weeks to read every federal statute and each state has different rules. However, there is a pattern.

Most civil forfeitures start when a police officer pulls over a vehicle. Maybe they were speeding. Perhaps they were following too closely, or driving too near the line. Sometimes, an out-of-state licence plate will attract attention from police.

If an officer has probable cause to believe that anything in the car is connected to a crime (as a product of, means to commit, or other connection depending on specific statutes), they can lawfully seize it. Cars and cash - like the ships and gold pirates once plundered - —are some of the most commonly seized assets.

Once authorities take the property, it does not belong to the government yet. “Police are in the seizure business”, explains McGrath. “Now, that’s just the taking of the stuff. The question then becomes, can the state keep it?” At this point, government prosecutors pursue forfeiture, which is the legal transfer of ownership to the government.

Once a seizure becomes a forfeiture case, the absurdity of the process is apparent. Since the charges of criminal activity are against the property and not the owner, civil forfeiture cases have names like: United States v $124,700 in US Currency, Quantity of Books v Kansas, or United States v 2007 Volkswagen Convertible Beetle [its VIN and license plate number].

Civil forfeitures are hard to contest and often not worth it. First there is no right to an attorney in civil court, leaving property owners without anyone to guide them through a thicket of deadlines and paperwork. If the owner does meet the 30-day deadline to claim an interest in their property, they still have to prove that the property was innocent of criminal connection.

The standard of evidence in civil court also varies. A standard of evidence is basically how certain the government is of someone’s (or something’s) guilt. In criminal court, people are innocent until a jury decides their guilt is “beyond reasonable doubt”. The standard of evidence in civil court changes by state and is usually much less strict. So in forfeiture cases, seized property is often guilty until proven innocent by the owner, not the other way around. To make things more difficult, the innocence of the owner has nothing to do with the innocence of the property - in fact, owners can be proven innocent and still lose their property. This complex process causes many to give up.

“It is usually more expensive to hire a lawyer and to litigate your case than the value of the property seized. So in drug cases, we know that 97% or so of people just walk away. It would be irrational to spend $3,000 on a lawyer to try to get back a 1994 Chevrolet Nova worth $1,400”, says McGrath. It could be that many who walk away do so because they are guilty. But without a trial, there is no way to know.

No right to compensation

Even when someone gets their property back, their victory is incomplete because the government does not have to compensate the owner for the time they were without their property. If someone wins back their car, the government does not have to cover time missed from work, the cost of alternate transportation, or even damages to the vehicle while it was in government custody.

Charles Samuelson, the executive director of the American Civil Liberties Union Minnesota, sees another problem with civil asset forfeiture; it may not deter or combat crime the way it is supposed to.

According to the Minnesota state auditor’s report on forfeiture in 2013, more than 65% of forfeitures were worth under $1,000. Only 6% were worth more than $5,000. The goal of forfeiture is supposed to be “taking the profit out of crime”. But with such small seizures, Samuelson wonders whether forfeitures are seriously undermining criminal activity, or if they simply authorise police to pickpocket: “In essence, they’re shaking down people for the cash in their pockets.”

What statistics do not reveal, in-depth reporting sometimes does. Holcomb applauds the work of journalists who uncover stories of abuse. Such coverage in the newspaper complements data and social science research.

In the recent New Yorker article, “Taken”, Sarah Stillman detailed an operation in one Texas small town where an officer systematically sought forfeitures from out-of-town vehicles passing by. In another case, she described a forfeiture unit from a Florida town that brought in close to $50 million in only three years. The Miami Herald reported that the federal government demanded the unit return $4.2 million, some of which was being spent on salaries of officers stationed out of state as part of its effort to tap into drug money through equitable sharing cooperation.

But even if reports like these spark reform in states, it is unclear how much power states have to limit civil forfeiture.

Sharing the plunder

Federalism is one of the most defining characteristics of American government. Normally, state and local authorities enforce state and local law. While state laws cannot contradict federal law, they can be different. For example, the federal minimum wage is $7.25 per hour but other states can raise theirs. In 2014, Washington raised the state minimum wage to $9.32, the highest in the country. Washington gets to do that because of federalism.

States also have their own ways of handling civil forfeiture. In the report “Policing for Profit“ (for which Holcomb was an author), the Institute for Justice describes the various limitations on civil forfeiture in different states. Missouri does not let police keep any proceeds of forfeiture, funnelling it into education instead. Some states such as Nebraska require the government to prove beyond a reasonable doubt that property was connected to a crime before the state can keep it.

On August 1, Minnesota will become the newest state to crack down on civil forfeiture. The law going into effect will require a criminal conviction before someone’s property can be taken.

But equitable sharing threatens to make state law optional by letting authorities choose which laws to follow. When state or local authorities seize property, they would normally call the district or county attorney. Equitable sharing gives them an alternative number to call: the US Attorney. If a federal prosecutor takes the case, the state or local agency slips out from the restraints of state law and will receive the full benefits of federal civil forfeiture law.

Cooperating with Washington is very attractive. When the federal government adopts a seizure, the state or local agency gets up to 80% of the profits, as outlined in the Department of Justice’s Guide to Equitable Sharing. Federal law mandates that police get to keep the profit within their departments. So those rules in Missouri that require forfeiture proceeds to go to education? They do not apply to equitable sharing payments. If civil asset forfeiture takes the profit out of crime, equitable sharing puts it into policing.

Take Tony Jalali. He owns an office building in Anaheim, California, where medical marijuana is legal - so legal that the city hosts “the world’s biggest Medical Marijuana Mega Show“. But in 2013, news broke that Anaheim police had been cooperating with the US Drug Enforcement Administration. Together, they were planning to ignore state laws legalising medical cannabis and seize Jalali’s office building under federal law because of two occasions when he rented space to medical marijuana dispensaries. If federal prosecutors had not dropped the case following public outcry, the US government would have taken the value of Jalali’s office building and split it equitably with Anaheim police.

Officially, equitable sharing is supposed to “encourage further cooperation between the recipient state or local agency and federal law enforcement agencies”. But Jalali’s case illustrates that, when improperly used, the programme is an obvious way to sidestep state and local law.

The adoption request form nearly admits as much, saying that federal adoption of a seizure is appropriate when “a state forfeiture action may be infeasible or unsuccessful … state laws or procedures will result in a delay in forfeiture … or the pertinent state or local prosecuting official has reviewed the case and declined to initiate forfeiture proceedings for any reason”.

In 2011, some researchers did the science to back up the speculation. In the Journal of Criminal Justice, Holcomb and two colleagues compared the use of equitable sharing across different states. “Results suggest that state and local law enforcement agencies use federal equitable sharing to circumvent their own state forfeiture laws when state laws are more burdensome or less financially rewarding to these agencies, providing additional evidence that police operations are influenced by financial incentives.”[4]

Holcomb puts it another way: “It’s a rational response. If the door closes on this money, we’ll use this other door.”

Minnesota’s uncertain forfeiture future

The equitable sharing loophole may spell trouble for reformers in Minnesota, as it joins other states that have limited civil forfeiture. In 2009, civil forfeiture became an issue of state-wide concern following the scandal of abuse in a Twin Cities task force. After budget cuts, the Metro Gang Strike Force began relying on widespread civil forfeiture abuse to keep things running.

The reaction to the scandal was the same across party lines. Samuelson explains that civil asset forfeiture was one issue that brought the ACLU Minnesota and the Institute for Justice Minnesota together. Capitalising on state-wide outrage, the liberal and conservative organisations worked together to promote SF 874, the law that takes effect in August.

The new law requires a criminal conviction against a person before their property can be forfeit. “We wanted to make the prosecutor convict someone as a prerequisite to the proceedings in civil court”, says McGrath. Without a conviction, there is no forfeiture.

Ideally, McGrath would like even more change. “In a perfect world, like the one they have in North Carolina, there would be no civil forfeiture.” The same court would find someone innocent or guilty, and then decide whether their property was part of the crime and could be taken.

Though McGrath would have liked to see Minnesota eliminate civil forfeiture altogether, he is cautiously optimistic. “I don’t think the change in law will trigger more forfeiture under federal law.” Even in the face of equitable sharing, he doubts forfeitures in Minnesota are large enough to interest federal prosecutors.

McGrath could have a point, considering that there are minimum adoption thresholds. The federal government will not adopt seizures unless the assets are worth a certain amount of money. For example, the Department of Justice is only interested in cash seizures of $2,000 or more, and vehicles worth $5,000 or more. If forfeitures in Minnesota are generally below these thresholds, maybe equitable sharing will not affect Minnesota.

But Holcomb has crunched the numbers, and is less optimistic. He does believe the minimum thresholds for adoptions prevent some petty abuse. He knows some US Attorneys will not be interested in overusing equitable sharing. He even speaks highly of the personal character and common sense nature of law enforcement officers.

However, as a social scientist, Holcomb is matter of fact about how his research applies to states that try to rein in civil forfeiture. “People in Minnesota read the newspaper, they force their state legislature to change the law and they feel like something’s happened. But that is not the end of it. Law enforcement agencies in Minnesota can, if they choose, completely circumvent that law and process it through the federal equitable sharing process.”

When asked if equitable sharing would reduce the effectiveness of SF 874, Samuelson did not know what to say. Like most people, he had never heard of the programme. Once he understood that equitable sharing lets state and local authorities seize property under federal law rather than state law, Samuelson was incensed.

“That is the most brilliantly stupid programme I’ve heard of in my entire life. What do they really think is going to happen when they simply say ‘screw you’ to the state and go around them by going to federal law?”

No one can be sure how much these reforms will reduce forfeiture. In 2013, Minnesota law enforcement agencies received $1.8 million in equitable sharing payments. In the same year, North Carolina - despite doing even more than Minnesota to decrease forfeiture - saw more than $12.7 million flow into its state and local agencies through equitable sharing.

Stuck in the current

Civil asset forfeiture has changed a lot since the Grampus seized the Palmyra in 1822. The idea that property can commit a crime has always been bona fide make-believe. But in the beginning, this legal fiction was a tool for specific conditions, where a court could not reach a criminal and therefore took out justice on the property. It was an exception, not a rule.

Today, civil asset forfeiture is a rule. Provisions for civil forfeiture permeate American law at every level of government. Gradually, law enforcement agencies have come to depend on the profits of forfeiture as revenue. In 2001, one scholar surveyed 770 law enforcement leaders. Nearly 40% said that civil forfeiture was “necessary as a budget supplement.”[5] Since then, forfeiture has only become more important. The Asset Forfeiture Fund contained about $440 million in 2001, compared with nearly $2.1 billion in 2013.

At the federal level, there is a tremendous amount of infrastructure that supports forfeiture operations nationwide. The Department of Justice treats forfeiture profits as a revenue stream to manage and invest.

In 2008, the Bureau of Alcohol Tobacco and Firearms (ATF) came under fire for the slogan, “Always Think Forfeiture“. This play on the bureau’s name was printed on Leatherman tools that the agency gave out at a training programme, giving some indication of the institution’s priorities.

Equitable sharing is a little-known piece of this national machine. Admittedly, it may not be all bad. Holcomb says, “To be fair, equitable sharing has its place, especially when you’re dealing with multi-jurisdiction task forces.” There is nothing wrong with cooperation between federal agencies and state and local authorities. The trouble is when the federal government seems to be co-opting state and local law enforcement agencies, rather than cooperating with them.

It is hard to overstate the effect of equitable sharing to entrench the use of civil forfeiture in American law enforcement practice. It gives police a profit motive to seize as much property as possible. Even more importantly, it brazenly undermines states’ ability to make substantive reform by inviting state and local authorities to pick their favourite laws.

“It’s great that state laws are changing”, says Holcomb, “but the only way that you can really ensure that you’re having law enforcement abide by state laws is to close that equitable sharing loophole.”

Image Credit: The American Civil Liberties Union

Other resources:

The Department of Justice Asset Forfeiture Program page is full of national forfeiture data.

For detailed information about where equitable sharing payments are going in your state, click on the equitable sharing report for one of the following years:

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Institute for Justice resources: Policing for Profit & Inequitable Justice

The ACLU Civil Asset Forfeiture page

A legal overview from Cornell University Law School

[1] Leonard Williams Levy, A License to Steal: The Forfeiture of Property (UNC Press Books, 1996).

[2] Susan J. Parcels, “An Analysis of Federal Drug-Related Civil Forfeiture”, Maine Law Review 34 (1982): 435.

[3] Marc B. Stahl, “Asset Forfeiture, Burdens of Proof and the War on Drugs”, Journal of Criminal Law and Criminology, 1992, 274–337.

[4] Jefferson E. Holcomb, Tomislav V. Kovandzic, and Marian R. Williams, “Civil Asset Forfeiture, Equitable Sharing, and Policing for Profit in the United States”, Journal of Criminal Justice, Addiction and the Criminal Justice System, 39, no. 3 (May 2011): 273–85.

[5] John L Worrall, “Addicted to the Drug War: The Role of Civil Asset Forfeiture as a Budgetary Necessity in Contemporary Law Enforcement”, Journal of Criminal Justice 29, no. 3 (May 2001): 171–87.

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