Adventures in Asset Forfeiture

Asset forfeiture laws in many states allow the police to seize property that has supposedly been used to commit a crime, and then keep the proceeds for themselves. Often, these laws victimize people who have not been convicted of any crime, and indeed did not even know that their property might have been misused. They also often give the owner little or no opportunity to challenge the seizure, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment. Needless to say, such perverse incentives lead to many abuses, as documented in a 2010 report by the Institute for Justice.

Two excellent recent articles by George Will and Radley Balko describe some particularly egregious examples.

Here is Will:

Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife, Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language….

In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery….

Since 1994, about 30 motel customers have been arrested on drug-dealing charges. Even if those police figures are accurate — the police have a substantial monetary incentive to exaggerate — these 30 episodes involved less than 5/100ths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days. Yet this is the government’s excuse for impoverishing the Caswells by seizing this property, which is their only significant source of income and all of their retirement security.

The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence — to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and they turn the information over to the police, who have never asked the Caswells to do more.

Balko describes an equally ridiculous case:

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail….

“The police specifically told us to bring cash,” Greer says. “Not a cashier’s check or a credit card. They said cash.”

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.

Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.

“I told them the money had just come from the bank,” Beverly Greer says. “We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that….”

It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. “The family produced the ATM receipts proving that had recently withdrawn the money,” Williams says. “Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money….”

Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged. …

Although Mrs. Greer was able to recover her money, authorities in Wisconsin and elsewhere continue to seize cash based on “alerts” by drug-sniffing dogs, that can be extremely misleading:

But even in the odd world of asset forfeiture, the seizure of bail money because of a drug-dog alert raises other concerns. In addition to increasing skepticism over the use of drug-sniffing dogs, studies have consistently shown that most U.S. currency contains traces of cocaine. In a 1994 ruling, for example, the U.S. 9th Circuit Court of Appeals cited studies showing that 75 percent of U.S. currency in Los Angeles included traces of narcotics. In 2009, researchers at the University of Massachusetts analyzed 234 bills collected from 18 cities, and found that 90 percent contained traces of cocaine….

Stephen Downing, a retired narcotics cop who served as assistant police chief in Los Angeles, says it isn’t surprising that a drug dog would alert to a pile of cash, since it usually has traces of drugs.

“I’d call these cases direct theft. They’re hijackings,” says Downing, who is now a member of Law Enforcement Against Prohibition, an organization of former police and prosecutors who advocate ending the drug war.

Downing says he recently consulted a medical marijuana activist in California who was told to bring his bail money in cash, despite the fact that state law allows payment with a cashier’s check, a registered check or a credit card. “It makes me wonder if this seizing of bail is a new idea getting shopped around in law enforcement circles.”

While the details of these abuses vary, the underlying problem is the same: an asset forfeiture system that allows law enforcement agencies to seize the property of the innocent and then keep the loot for themselves. This predictably leads to a situation where many take the property first and only ask questions later – if at all. As Balko points out, low-income property owners are particularly likely to be victimized, because they often lack the funds to hire a lawyer to contest the seizure and state law often does not pay for a public defender in these cases.

CONFLICT OF INTEREST WATCH: I have done pro bono work on other cases for the Institute for Justice, which is representing the property owner in the Tewksbury case.

UPDATE: I wrote this post before noticing Jonathan Adler’s earlier post on the same subject. I am leaving this post up because it goes into much more detail. Also, I disagree with Jonathan’s statement that this sort of abuse is “constitutional.” The Supreme Court ruled that it was in Bennis v. Michigan. But I think the dissenters in that case (a cross-ideological coalition of Justices Kennedy and Stevens) got it right.

Moreover, Bennis held merely that the seizure of innocent owners’ property does not automatically violate the Due Process Clause. It did not rule on the Due Process Clause issues that arise when the authorities seize the property with little or no evidence that it actually was used in a crime, or when they fail to give the owner a meaningful and prompt opportunity to challenge the seizure in court. In a 2009 case, the Supreme Court planned to address the latter issue, but ended up dismissing the case as moot.

UPDATE #2: In an update to his post, Jonathan clarifies that he too is sympathetic to many of the arguments made by the Bennis dissenters. For my part, I agree with him that not every morally objectionable forfeiture practice is necessarily unconstitutional.