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Is Anyone Not a Cop In Favor of “Civil Forfeiture” Laws?

Law enforcement should be everyone’s burden, through taxes, and not just the burden of the poor saps who happen to wander down the wrong road in Texas and become the victims of uniformed pirates.

August 9, 2013


The most import­ant legal story of the week wasn’t Flor­id­a’s continu­ing defi­ance of the Supreme Court’s Eighth Amend­ment juris­pru­dence when it executed John Ferguson, a mentally ill man who believed he would rise from the dead and fight Commun­ists with Jesus. It was not Boston mobster James “Whitey” Bulger’s continu­ing defi­ance of the rack­et­eer­ing case against him as it winds its way toward a verdict. It was not even Marc Book­man’s tren chant look at the fallib­il­ity of crime and punish­ment in The Atlantic in “The Confes­sions of Inno­cent Men.”

It was instead a bril­liantly-writ­ten and deeply-researched story by Sarah Still­man in The New Yorker about the ways in which local law enforce­ment offi­cials are commit­ting high­way robbery against Amer­ican citizens—­l­it­er­ally—­through the use and misuse of broad “civil forfeit­ure” laws which permit the police to seize prop­erty from people and sell and use it for their own bene­fit without ever char­ging, let alone convict­ing, the original prop­erty owner of a crime. The stor­ies are heart-break­ing and incom­pat­ible with what we believe to be the purposes of our legal systems.  

By main­tain­ing the guise of a “civil” proceed­ing even as they treat people like convicted crim­in­als, offi­cials who rely upon “civil forfeit­ure” laws get around the presump­tion of inno­cence that is supposed to attach in crim­inal cases. They also get around the “beyond a reas­on­able doubt” stand­ard. And they are able, through sheer bluff and bluster, to scare and intim­id­ate people into giving up their rights. Megan Mcardle, writ­ing for Bloomberg, was abso­lutely right this week in compar­ing these extor­tion prac­tices to the “entre­pren­eur­ial corrup­tion” that hinders coun­tries in Europe and the Middle East.

What’s so power­ful about Still­man’s work isn’t that she told us some­thing we didn’t already know. We’ve known for years that civil forfeit­ure laws, whatever their initial merit, have been persist­ently broadened to the point of misuse. And you don’t need to be a legal scholar or polit­ical scient­ist to under­stand why: by allow­ing the police to bene­fit directly from the “forfeit­ures,” these laws create perverse economic incent­ives. It’s bad enough when local cops set up a speed trap so they can fine drivers to pay for road construc­tion. It’s far worse when local cops seek to raise money for their own salar­ies by taking someone’s car, or their cash, or by threat­en­ing to take their home.

Still­man’s piece is import­ant because it reminds us in gory detail that we haven’t done nearly enough to stop this offi­cial miscon­duct. It should­n’t be a polit­ical matter. There should be broad bipar­tisan support to reign in this abuse. Conser­vat­ives, who pray at the altar of private prop­erty, should­n’t toler­ate policies that strip people of their prop­erty without any mean­ing­ful due process. Progress­ives, ever skep­tical of the arbit­rary nature of local law enforce­ment, should­n’t toler­ate prac­tices with such little judi­cial over­sight. Who exactly, out of a police uniform, is in favor of “civil forfeit­ure?”

And yet here we are. The only rationale for civil forfeit­ure is that it helps the police fight crime and the police are aston­ish­ingly candid about why they take the assets they take. “We all know the way things are right now—budgets are tight,” Steve West­brook, the exec­ut­ive director of the Sher­iffs’ Asso­ci­ation of Texas told Still­man. “It’s defin­itely a valu­able asset to law enforce­ment, for purchas­ing equip­ment and getting things you normally would­n’t be able to get to fight crime.” Many officers, Still­man tells us, “contend that their depart­ments would collapse if the prac­tice were too heav­ily regu­lated.”

That rationale is a perver­sion of Amer­ican law and polit­ics. Law enforce­ment should be every­one’s burden, through taxes, and not just the burden of the poor saps who happen to wander down the wrong road in Texas and become the victims of uniformed pirates. If the police need more money to fund their oper­a­tions they should­n’t be allowed to take it from people without trial. They should be required to ask for it from elec­ted offi­cials, who are account­able to voters. Civil forfeit­ure laws imper­miss­ibly shift public burdens onto a few people, found in the wrong place and the wrong time, presumed guilty and punished without indict­ment or trial, and deprived of their “prop­erty” without “due process of law.”

Civil forfeit­ure reform efforts already are under­way. Many people around the coun­try under­stand better now the inher­ent danger of link­ing law enforce­ment activ­it­ies with a profit motive. But Still­man’s piece should exped­ite the process of reform. Congress needs to curtail the prac­tice on the federal level—and also expand the abil­ity of indi­gent people who are subject to civil forfeit­ure to have access to coun­sel. And state lawmakers need to confront the sad truth that they have over time permit­ted the police to turn these forfeit­ure laws on people who were never inten­ded to be targets.

(Photo credit: Think­stock)