The nonprofit Institute for Justice has just released the 3rd edition of its Policing For Profit report, examining the abuses of civil asset forfeiture by local police across the United States. According to their data, local police departments have seized more than $68 billion dollars worth of personal property without due process over the last 20 years. In fact, since 2014, police have been stealing more than actual burglars—and most of that came from people who hadn't been convicted of a crime. From the report:
Civil forfeiture allows police to seize property on the mere suspicion that it is involved in criminal activity. Prosecutors can then forfeit, or permanently keep, the property without ever charging its owner with a crime. By contrast, criminal forfeiture requires prosecutors to prove beyond a reasonable doubt that an owner is guilty of a crime and then, in the same proceeding, prove the property is connected to the crime.
Despite the billions generated, our data indicate the typical individual cash forfeiture is relatively small—only a few hundred or a few thousand dollars. This suggests that, aside from a few high-profile cases, forfeiture often does not target drug kingpins or big-time financial fraudsters. More than that, the data show why it often makes little economic sense for property owners to fight. The cost of hiring an attorney—a virtual necessity in navigating complex civil forfeiture processes, where there is generally no right to counsel—often outweighs the value of seized property. This is why Stephanie abandoned her first car.5 Still, many small forfeitures such as hers can make a great deal of economic sense for law enforcement. In just two years, the Wayne County forfeiture program that claimed Stephanie's car generated $1.2 million in revenue from 2,600 cars.6
In these and other ways, civil forfeiture threatens not only property rights but also due process rights. Indeed, in 2017, U.S. Supreme Court Justice Clarence Thomas questioned whether modern civil forfeiture laws "can be squared with the Due Process Clause and our Nation's history."7 Civil forfeiture is not only a civil process, it is an "in rem" proceeding, meaning it is a lawsuit against the property, not the person. (Hence, odd case names like Richardson v. $20,771.00 U.S. Currency and In re: U.S. Currency $31,780; 2012 Volkswagen Jetta, VIN 3VW3L7AJ0CM366141.8) As a result, Justice Thomas noted, owners can lose property even when innocent, and procedural protections common to criminal proceedings usually do not apply.
Forfeiture's financial incentive may promote negative interactions between police and the public, a particular risk to communities of color. Indeed, there is evidence forfeiture disproportionately affects Black men. And recent research finds increases in arrest rates for Blacks and Hispanics during times of fiscal stress and when law enforcement can benefit financially from forfeiture under state law. Not only may forfeiture target communities least equipped to fight back, it may further burden lower-income and other disadvantaged communities by depriving them of needed resources.
Adding insult to injury, civil asset forfeiture has yet to demonstrate any quantifiable impact on crime:
Few, if any, forfeiture programs track whether forfeiture cases are linked to, let alone advancing, criminal investigations. As multiple federal inspectors general reports have noted, this makes it impossible for officials to evaluate program effectiveness and calls into question whether forfeiture efforts are advancing legitimate goals.
A growing body of research, including the new evidence from New Mexico presented here, finds little evidence forfeiture reduces crime.
Although federal agencies highlight the billions they have recovered and returned to victims of Bernie Madoff's Ponzi scheme through forfeiture, such examples are outliers. Overall, DOJ spends less than a third of forfeiture proceeds on victim restitution or other third-party compensation.
While some states mandate spending on victim compensation or community programs, data from 13 states suggest agencies otherwise rarely use forfeiture proceeds for these purposes. In 2018, agencies in the 13 states spent almost no proceeds on victims and just 9% on community programs on average.
For some law enforcement agencies, forfeiture funds have accounted for as much as 20% of their budgets, and are sometimes used for seemingly nonessential purchases. A police department in Georgia, for example, once spent $227,000 on an armored personnel carrier, and a sheriff in New Mexico splashed out $4,600 for an awards banquet. In one recent case, a suburban Atlanta sheriff spent $70,000 in forfeiture funds on a muscle car, a Dodge Charger Hellcat, that he uses solely to drive to and from work. The U.S. Justice Department called that purchase "extravagant."
The fact that most of this money and property is coming from poorer people is particularly frustrating, when you consider the penalty pittances paid by most white collar criminals.
Policing For Profit: The Abuse of Civil Asset Forfeiture [Institute for Justice]
Police Say Seizing Property Without Trial Helps Keep Crime Down. A New Study Shows They're Wrong. [Ian MacDougall / ProPublica]
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