Reforming a Relic of the War on Drugs: Civil Asset Forfeiture

Would it surprise you to find out that, if you were pulled over by a police officer for a minor traffic violation, any possessions your have in your car (including cash) could be confiscated? Or that you could lose your home if your grandson sold $40 worth of drugs on your porch? Or how about if you drove to a party where alcohol was being served illegally, would it surprise you to find out that your car could be confiscated?

You shouldn't be surprised. Because all of those things have actually happened to people in various parts of this country. And it's all legal based on something called "civil asset forfeiture." The laws governing it are a mixture of federal and state statutes. But the basics are that law enforcement can take possession of any asset that they claim has been involved in criminal activity. The owner of said asset needn't be charged with any crime themselves. And in many states, our justice system is turned on its head: in order to retrieve their property, the owner is required to prove - beyond a reasonable doubt - that the asset was not involved in a crime.

In August 2013, Sarah Stillman wrote an in-depth article about civil asset forfeiture and summarized it's beginnings as part of the war on drugs:

Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed...at organized-crime bosses and drug lords. Law-enforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime. Even then, forfeiture remained an infrequent resort until 1984, when Congress passed the Comprehensive Crime Control Act. It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws.

Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.) The strategy helped reconcile President Reagan’s call for government action in fighting crime with his call to reduce public spending. In 1989, Attorney General Richard Thornburgh boasted, “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

A March 2010 report on civil asset forfeiture done by the Institute for Justice explored the "profit motive" for law enforcement inherent in this practice: "The results suggest, albeit indirectly, that when state law makes forfeiture less rewarding and more difficult, state and local law enforcement agencies engage in less of it." To give you some idea of the potential profit in just one city:

From 2002 to 2012, Philadelphia took in almost $6 million annually and $64 million in total in civil forfeiture revenue, Sheth said.

During that time, 1,172 homes and other real property, 3,290 automobiles and other vehicles and more than $44 million in cash were seized.

The New York Times recently received recordings of trainings provided to law enforcement officers on civil asset forfeiture in New Mexico, New Jersey and Georgia where one presenter offered "useful tips on seizing property from suspected criminals. Don’t bother with jewelry (too hard to dispose of) and computers ('everybody’s got one already'), the experts counseled. Do go after flat screen TVs, cash and cars. Especially nice cars."

Like most areas of our criminal justice system that require reform, the victims of civil asset forfeiture are most often Black, Hispanic and/or poor. As Stillman reported:

“For real-estate forfeitures, it’s overwhelmingly African-Americans and Hispanics,” Rulli told me. “It has a very disparate race and class impact.” He went on to talk about Andy Reid, the former coach of the Philadelphia Eagles, whose two sons were convicted of drug crimes in 2007 while living at the family’s suburban mansion in Villanova. “Do you know what the headline read? It said, ‘THE HOME WAS AN “EMPORIUM OF DRUGS.” ’ An emporium of drugs!” The phrase, Rulli explained, came directly from a local judge. “And here’s the question: Do you think they seized it?”

I think we all know the answer to that question.

If, in fact, there is the possibility of bipartisanship on the issue of criminal justice reform, this is an area that is screaming out for attention.