Asset Forfeiture

Rand Paul, Institute for Justice Push Senate for Forfeiture Reform

Committee hearing focuses on FAIR Act proposal.

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BUT WHAT DID HE HAVE FOR LUNCH TODAY?
Senate Judiciary Committee

Sen. Rand Paul took some time from campaigning (though really it can be argued this is part of his campaigning) to appear before the Senate Judiciary Committee and promote reform of federal civil asset forfeiture laws.

He was the first witness in a hearing bluntly titled "The Need to Reform Asset Forfeiture." Committee Chairman Sen. Chuck Grassley (R-Iowa) called on him to speak on his proposed Fifth Amendment Integrity Restoration (FAIR) Act to curtail the abuse of the federal civil asset forfeiture process (Grassley also put out a statement calling for reform, saying, "Rather than prosecute or even arrest, civil asset forfeiture enables law enforcement to seize property without any proof of wrongdoing. And the process creates perverse incentives.")

Paul's statement highlighted those victims who get caught up in law enforcement agencies' zeal to find money:

Last year in Philadelphia, Christos Sourvelis watched his son get arrested by the police for selling $40 worth of drugs outside of his home. One month later, the police were back at the Sourvelis' home, not for his son, but for his house. The Philadelphia District Attorney dropped the case months later, only after their actions had been the subject of intense media and legal scrutiny.

But not all the victims are so lucky. There have been over 60,000 cash seizures made on highways since 2001 without search warrants or indictments, totaling more than 2.5 billion. These seizures were done through the equitable sharing program. This program provides a perverse incentive that encourages government to confiscate property because government officials get to keep up to 80 percent of the proceeds.

Mandrel Stuart is just one of the people who had his money seized as a result of this program.

Mandrel Stuart owned a barbeque restaurant called Smoking Roosters in Staunton, Virginia. When he was stopped for a minor traffic offense in 2012, the police seized seventeen thousand dollars in cash he was going to use for supplies and equipment for his restaurant. They found no evidence of wrongdoing and never charged him with a crime–but they still took his money. The prosecutor told him half his money would be returned if he accepted a settlement. Mr. Stuart refused and eventually got his money back, but the year it took was too long for his business to survive.

Paul's examples are likely familiar to Reason readers (if not, check out our collection of posts on asset forfeiture). He also took an opportunity to blast Loretta Lynch, current nominee for attorney general, for her role in facilitating hundreds of millions in civil forfeiture during her time as a U.S. attorney in New York and not filing paperwork properly to allow citizens to try to resist (Paul has also publicly said he will not vote to confirm Lynch's nomination).

Paul was joined in his calls for reform by Darpana Sheth, an attorney for the forfeiture-fighting Institute for Justice, and Russ Caswell, a Massachusetts hotel owner who had to fight the feds for years to keep them from seizing his property over a handful drug cases that he knew nothing about and was not involved in but took place in his hotel rooms.

But even though civil asset forfeiture reform is seeing significant bipartisan support (see how there was no legislative opposition to recent reforms in New Mexico), there were still those who declined to see a real problem. Chuck Canterbury, national president of the Fraternal Order of Police, while acknowledging some issues with the system, was blunt about what law enforcement agencies actually want. They want money:

"The chief point of contention, of course, is the [FAIR Act] proposes to end the equitable sharing program for state and local law enforcement agencies whereby these agencies could seize property used in furtherance of crime or which represented the profits of a crime and reinvest those profits in public safety and the community. Under the draft bill, federal law enforcement agencies would be able to continue to seize property but would be prohibited from sharing any of the assets with local or state agencies—even if those state and local agencies were part of a task force or other multi-jurisdictional effort which carried out the seizure.

The funds and resources generated by the equitable sharing programs are of great value to law enforcement, to public safety and to the community, as states use these shared funds for a wide variety of purposes. Like any government program, there can be found instances of abuse and the FOP supports measures to combat such abuses and to improve the integrity of the program. However, to end a decades-long program which is worth hundreds of millions to our nation's communities and has a documented success in deterring and fighting crime based on anecdotal media reports is simply not sound public policy.

Actually, there's no indication of "documented success in deterring and fighting crime" from asset forfeiture either. Are drugs harder to get than they were before? Later in the hearing, Sheth ended up catching Canterbury flatfooted by pointing out a study of the way law enforcement used asset forfeiture in Tennessee. There they found police would monitor mostly one side of the highway, the side leading out. That way they were able to snag the money from alleged drug deals as they were leaving. That is to say: They were doing little to actually stop the flow of drugs into Tennessee. There is no money for law enforcement in actually stopping drugs at their source. Rather they were knowingly allowing drug dealing to go on in their communities so they could grab the money on the way out of state. Canterbury said he hadn't read the report Sheth mentioned but was sure the methodology was wrong.

And then there was Sen. Jeff Sessions (R-Ala.), who could barely even acknowledge that innocents were caught up in asset forfeiture and seemed to think everybody police pulled over was a character from Boardwalk Empire. Toward the end he acknowledged Caswell's plight, but saw no legal or ethical issues with taking property and requiring citizens to prove their innocence rather than applying the same due process used for criminal charges.

Sessions' drug war cheerleading may not amount to much, but it is important to listen to the subtext of what Canterbury is saying. New Mexico Gov. Susana Martinez brought up a similar issue when she approved her state's forfeiture reform. Those with control over the budget have not always approached asset forfeiture funds as an unexpected and unpredictable bonus in revenue. Some municipalities have come to rely on this money to make up for shortfalls and have cut police department budgets accordingly, with the expectation that police will make up the money. That twists their incentives even further into trying to find reasons to seize people's assets. If lawmakers scale back these systems as they should, some locales are going to have to start making some tough decisions about their budgets.

The full hearing can be viewed here (There's a lot of dead air at the beginning; Paul is about 35 minutes in). Alternatively, the prepared statements are also available on that page as pdfs.