Why Asset Forfeiture Abuse Is on the Rise

It's time to build a wall of separation between government power and the profit motive.

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 one peruses court documents, one will find cases with bizarre names such as The People v. One 1999 Buick. In criminal proceedings, the government must provide wrongdoing beyond a reasonable doubt before gaining the power to incarcerate an accused person. But local governments realize that, under civil forfeiture laws, they can seize houses and cars and cash based on a low standard of evidence.

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. One organization points to the case where the government tried to seize the tractor of a farmer accused of running over an endangered rat. As the number of regulatory crimes grows, the cases in which the government can seize assets grows along with it.

Columnist George Will wrote earlier this year of a case in Massachusetts, where law enforcement is attempting to take the motel owned by a family because of allegations that some visitors there dealt drugs from their rooms. "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."

As Will notes, police have an incentive to exaggerate the criminal activity there given their extreme financial incentive for taking the property. Massachusetts, he reported, has more stringent civil-forfeiture standards than federal law, so the town's police department is, as Will put it, "conniving with the federal government" to use federal standards instead. In essence, the city's police are violating state law so they can more easily gain the assets of the motel owners.

A similar situation exists in California. Local police agencies don't like that our state only allows them to keep 65 percent of the proceeds from their forfeitures and imposes additional hurdles beyond federal law.

"Through a federal program called 'equitable sharing,' however, California police are evading strong state law and turning property over to the federal government for forfeiture," explains the Institute for Justice, a libertarian group that defends property owners. "Federal law has lower standards for forfeiting property and provides a larger share of proceeds to the police—as much as 80 percent. Due to this incentive to circumvent stricter state law in favor of more profitable federal law, from 2002 to 2009, forfeitures in California under federal law outpaced those under state law by about two to one."

That statement was issued in support of AB639, sponsored by Assemblyman Chris Norby (R-Fullerton). The bill, which passed the Assembly but is essentially dead in the Senate this year, is designed to close the loophole that encourages state and local agencies to bypass state law.

The Los Angeles County district attorney's office complained that the bill's "only purpose is to make it impossible for state/local law enforcement agencies for using federal asset forfeiture procedures." Other law enforcement groups, including the California District Attorneys Association, likewise complained about the burden the law would place on government agencies.

But Americans should be more concerned by laws that place an unfair burden on the rights of citizens than on burdens placed on government agencies. We should all be concerned that district attorneys—who are, by law, supposed to pursue justice first and foremost—are perpetrating abuses of property rights so that they can fill their coffers with money that comes primarily from people who have not been convicted of any crime.

The proposed law is modest—it requires a court order before agencies can transfer forfeiture cases to the federal government. It insists that such cases involve true federal cases, such as those involving interstate commerce. It doesn't ban the use of civil forfeiture, but requires California agencies to follow California law. If anything, far broader reforms are needed so that no government can use shoddy standards to take private property to help their budget situation.

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.

Unfortunately, California's legislators are far more concerned about funding the state's enormous government than they are about protecting the rights of California citizens. In the Gospels, Jesus urged tax collectors to collect no more than they are authorized to do. In California, it's going to take far more than an admonition to get them to follow state law.