New Yorker Article on Asset Forfeiture Abuse

The New Yorker has an interesting article on asset forfeiture abuse, describing how law enforcement authorities routinely use it to seize property from people who have never been convicted of any crime, and often have not even been charged:

On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar-and-grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border….

Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over….

The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)

The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell… told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services….

Later, [Boatright] she learned that cash-for-freedom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country. “Be safe and keep up the good work,” the city marshal wrote to Washington, following a raft of complaints from out-of-town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband….

In general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.

Despite such abuses, New Yorker writer Sarah Stillman writes that “The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime.” I disagree. The idea that government can seize your property without ever having to prove that you committed a crime is deeply unjust, and creates dangerous perverse incentives for police, especially in cases where they or the local governments they work for get to keep the assets seized. The Texas jurisdiction discussed in Stillman’s article is particularly egregious, since it focuses its abusive behavior on out-of-town drivers who have little or no political leverage in the area, and face unusually high costs if they choose to contest the seizures.

A variety of reforms could help diminish asset forfeiture abuse. For example, police could be banned from keeping the proceeds, and state and local governments should give owners the right to contest seizures quickly and cheaply. In some states, current arrangements allow the authorities to hold forfeited property for many months without giving the owner any opportunity to challenge the seizure, thereby violating the Due Process Clause of the Fourteenth Amendment.

Ultimately, however, the best solution is to abolish civil asset forfeiture completely. If a person is convicted of a crime, he or she can be duly punished, including in some cases with financial penalties. Stolen or illegally acquired property can then be returned to its rightful owners. But there is no good reason for the authorities to be able to seize property merely because they suspect it might have been used in some illegal transaction. Moreover, once such a system is established, it turns out to be very difficult to prevent it from becoming highly abusive. As a practical matter, most of the people victimized by asset forfeiture abuse are poor, lacking in political influence, and unable to bear the expense of prolonged litigation. For these reasons, there is little political pressure to prevent the sorts of abuses documented in Stillman’s article and elsewhere. And there is similarly little incentive for higher officials to monitor police and prosecutors’ use of asset forfeiture to curb this kind of behavior. A categorical ban on civil asset forfeiture would be easier to administer than piecemeal reforms, and therefore more likely to succeed.

UPDATE [8/23/2013]: This post was written based on an early version of the New Yorker article. The New Yorker has since posted a much-expanded version that covers a much larger number of cases of asset forfeiture abuse and seems at least somewhat more open to the idea of abolishing asset forfeiture completely.