The Rise of Asset Forfeiture Abuse

Co-blogger Orin Kerr describes a planned effort by one local government to raise revenue by increasing asset forfeitures through the use of drug-sniffing dogs. Unfortunately, this is just one example of a growing trend of using asset forfeiture as a fundraising tool for law enforcement agencies. In this recent post, I rounded up many sources documenting the problem, including excellent articles by Radley Balko and George Will, and this report by the Institute for Justice. Asset forfeiture laws frequently victimize property owners who haven’t even been convicted of any crime, and in some states give them little or no opportunity to challenge the forfeiture of their possession, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment, which denies government the power to take away property without “due process of law.” This column by Steven Greenhut is a good summary of the problem:

Few groups of “sinners” were singled out in biblical accounts more than “tax collectors,” who were not merely state agents collecting revenues that taxpayers rightfully owed to the government. They were the source of particular loathing because they were extortionists, who profited personally by shaking down as much money from citizens as possible…

The Gospel accounts provide an early lesson in the danger of marrying the profit motive with governmental power. The possibility for abuse is great. Yet throughout the United States, government agencies increasingly rely on “civil forfeiture” to bolster their strained budgets. The more assets these modern-day tax collectors seize, the more money they have for new equipment and other things….

If, for instance, your neighbor borrowed your green Buick and sold some marijuana to an undercover agent, the law enforcement agency can seize the car. The owner might not have done anything wrong, but the car was indeed used in the commission of a crime. Activists point to instances where the government has become more creative in seeking assets—homes, cars, bank accounts—based on minor violations of the ever-expanding criminal code… As the number of regulatory crimes grows, the cases in which the government can seize assets grows along with it….

There is something terribly disturbing about this “policing for profit” trend, especially in our current world where the number of laws keeps growing. We’ve all become accustomed to police increasing their ticket-writing to backfill their budgets, but asset forfeiture takes the profiteering to a new and disturbing level. Agencies know that it’s so costly for people to fight their forfeiture proceedings that many victims simply cede the property without a fight. That’s wrong.

The Supreme Court planned to address some of the constitutional issues raised by dubious asset forfeitures in the 2009 case of Alvarez v. Smith, but ended up dismissing the case on procedural grounds. As a lower court judge, Justice Sonia Sotomayor wrote an opinion curbing especially egregious asset forfeitures that violate the Due Process Clause. Hopefully, the Supreme Court will eventually follow her example on this issue.

In the meantime, awareness of asset forfeiture abuse is slowly rising. But reform efforts are hindered by the reality that most of the victims are relatively poor and lack political clout. In addition, law enforcement agencies and local governments are unwilling to part with this lucrative revenue source, especially in difficult economic times.

UPDATE: It’s worth noting that drug-sniffing police dogs are often highly inaccurate, because dogs want to please their human handlers and therefore may turn up a false positive because that’s the reaction they think the handler wants. As Radley Balko explains, this can lead to bogus asset forfeitures:

The consequences of misusing police dogs go well beyond unconstitutional searches. A drug dog’s alert can help establish a connection between a suspect’s property and drug activity, allowing police to seize the property for possible forfeiture. Even if the owner is never charged with a crime, the burden is on him to go to court to win back what was his, a process that often costs more than the property is worth. In a case I reported last year, for example, college student Anthony Smelley had $17,500 in cash that he’d won in an accident settlement seized when police in Indiana pulled him over and a drug dog alerted to Smelley’s car. It took Smelley more than a year to win the cash back in court, even though a subsequent hand search turned up no illegal substances.

The danger of a false positive induced by a dog’s desire to please is especially great when asset forfeiture is a possibility, because law enforcement officers often have a strong desire to maximize the amount of property they can seize for their agency’s benefit. Moreover, many of the dogs used for drug-sniffing are retrievers. And, as my fellow retriever owners know, retrievers are even more eager to please than most other dog breeds.