Hey, here's a great crime-fighting idea: Let's give local police and prosecutors the authority to seize cash, cars, homes, and other property from private citizens—without a court convicting those citizens of any crime. Without, in fact, even charging those citizens with any crime. Then let the authorities sell the goods and keep the proceeds for themselves.
What could possibly go wrong?
Well, now we know. In fact, we've known for a long time. Since the practice described above, called civil asset forfeiture, took off about three decades ago, its flaws have become painfully clear. The system's incentives have led some localities to turn forfeiture into little more than a shakedown operation.
That has produced untold cases like Mandrel Stuart's. Stuart, a Staunton businessman, got pulled over for a minor traffic violation. The police seized the $17,550 they found in his car. Unlike many victims of forfeiture, Stuart fought back. A jury said the government should return his money—which it did. But by then, he had lost his small barbecue joint because he didn't have the funds to keep it running.
Congress tried to rein in such abuses in 2000, when it passed the Civil Asset Forfeiture Reform Act. It didn't help. In 2010, the libertarian Institute for Justice produced its "Policing for Profit" report, which showed how miserably the change in federal law had failed to stem the rampant abuse. The report gave Virginia a D-minus. "Virginia's civil forfeiture laws utterly fail to protect property owners," it concluded. "Property owners bear the burden of proof for innocent-owner claims, effectively making them guilty until proven innocent. Moreover, law enforcement retains 100 percent of the proceeds from civil forfeiture."
The institute is now suing over asset forfeiture in Philadelphia, which has reaped more than $64 million from the practice over the course of a decade—and used $25 million of it to pay prosecutors' salaries. Among the plaintiffs: Chris Sourovelis and family, whose house was seized after their son was caught selling $40 worth of drugs nearby.
Earlier this month The Washington Post ran its own lengthy exposé on civil asset forfeiture. It counted up tens of thousands of cash seizures on the nation's highways that funneled $1.7 billion to state and local agencies, and an additional $800 million to the feds. Only one in six seizures was challenged; 40 percent of challenges took more than a year to resolve. The series also uncovered a network called Black Asphalt that lets officers "share detailed reports about American motorists—criminals and the innocent alike—including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop. … A thriving subculture of road officers on the network now competes to see who can seize the most cash and contraband."
One of the cases the paper highlighted involves Victor Ramos Guzman and his brother-in-law. They were driving a rental car on I-95 south of Richmond when they were stopped for speeding. They had $28,500 in the car, which was seized by Immigrations and Customs Enforcement. As it turns out, the money belonged to a Baltimore church the two men were members of. They were using it to buy land for another church. ICE eventually gave back the money. According to The Post, the Virginia State Police trooper who pulled them over is a member of the Black Asphalt network. State police spokeswoman Corinne Geller told the newspaper that "the facts of the stop speak for themselves." Yes they do.
Do some seizures fulfill the original goals of the forfeiture program—disrupting criminal enterprises while giving local police departments some badly needed revenue? Absolutely. But by the same token, you're also likely to catch a lot of bad guys and disrupt criminal enterprises if you conduct house-to-house searches of whole neighborhoods. But catching bad guys is not the prime function of law enforcement. The prime function is protecting the rights of the law-abiding. Busting bad guys is simply a means to that end.
The perversion of asset forfeiture into a moneymaking scheme for law enforcement agencies reflects a broader problem. It is a case study in how government becomes a self-dealing special interest. Other examples abound—from social welfare programs that try to erase the stigma of dependence on social welfare programs, to weapons programs even the military doesn't want—but few illustrate the problem in such bold colors. Imagine what audits would be like if IRS agents got to keep any money they said you owed. That's civil asset forfeiture in a nutshell.
The abuse has gotten so bad that two of the practice's principal originators have now repudiated their own program. John Yoder and Brad Cates ran the Justice Department's Asset Forfeiture Office in the 1980s. The other day, The Washington Post ran an op/ed they co-wrote—"Kill the Program We Helped Start"—in which they said "civil asset forfeiture and money-laundering laws are gross perversions of the status of government amid a free citizenry. The individual is the font of sovereignty … and it is unacceptable that a citizen should have to 'prove' anything to the government."
Exactly so. Asset forfeiture should be limited to criminal cases. The government should not use a lower standard of proof to take property simply because it thinks somebody might be up to something, maybe. If it can't prove a case, then it should not get the cash. Police departments that play by the rules should have no problem with that. And police departments that don't should have a lot less power in the first place.