Law Enforcement Loves Legal Larceny

Legislators should ignore the self-interested fearmongering of cops and prosecutors who oppose forfeiture reform.


During a talk radio debate last week, Tulsa's district attorney, Steve Kunzweiler, warned that civil forfeiture reform would invite "some of the most violent people in the history of this planet" to set up shop in Oklahoma, making decapitated bodies "hung from bridges" a familiar sight in the Sooner State. Last month Steve Jones, an assistant district attorney, told Tennessee legislators "criminals will thank you" for making it harder to confiscate people's property.

These are the noises that cops and prosecutors make when people talk about restricting their license to steal. A new report from the Institute for Justice (I.J.), which gives the forfeiture laws of both Oklahoma and Tennessee a D–, explains why legislators should ignore such self-interested fearmongering.

The I.J. report shows how civil asset forfeiture—which allows the government to take property supposedly linked to crime without charging, let alone convicting, the owner—exploded after Congress started letting law enforcement agencies keep the loot in the mid-1980s. The Justice Department's Asset Forfeiture Fund collected $4.5 billion in 2014, up from $94 million in 1986—an inflation-adjusted increase of 2,100 percent.

Many states followed the federal government's example, giving police and prosecutors a financial interest in forfeiture by awarding them anywhere from 45 percent to 100 percent of the money it generated. That gave law enforcement agencies a strong incentive to target people based on the assets they own rather than the threat they pose—"to favor the pursuit of property over the pursuit of justice," as I.J. puts it.

Neither justice nor public safety was served when cops took $11,000 in cash from Charles Clarke, a 24-year-old college student, at a Kentucky airport last year. The justification for seizing the money, which Clarke had saved from financial aid, family gifts, and various jobs, was that his suitcase smelled of marijuana.

Clarke, although a cannabis consumer, was no drug dealer, but that did not matter under federal law, which allowed seizure of the money based on "probable cause that it was proceeds of drug trafficking or was intended to be used in an illegal drug transaction." To keep the cash, the government need only show it's more likely than not that the money is connected to drugs in some way.

Even that "preponderance of the evidence" burden, which is much less demanding than the proof "beyond a reasonable doubt" required in a criminal trial, applies only when the owner contests a civil forfeiture. According to numbers obtained by I.J., that happens in only 12 percent of federal cases.

The failure to challenge a forfeiture is by no means proof of the owner's guilt, since trying to stop the government from keeping your property is a complicated and expensive process that often costs more than the asset is worth. And although federal law notionally protects innocent owners from forfeiture, they bear the burden of proving they did not consent to or know about an illegal use of their property—a reversal of the "innocent until proven guilty" rule in criminal cases.

Most states likewise make it easy for cops to take people's stuff and hard to get it back. That's why you can lose your home if your son sells pot there, lose your pickup truck if he installs stolen parts in it, and lose your car if your spouse uses it to find a prostitute—even if you knew nothing about the illegal activity that made your property guilty in the eyes of the law.    

Cases like these have inspired reforms in several states during the last couple of years. Most notably, New Mexico and the District of Columbia now allow forfeiture only after a criminal conviction and channel the proceeds into their general funds.

The latter reform is especially important and especially repugnant to cops and prosecutors. As Steve Jones, the Tennessee prosecutor, explained, law enforcement officials rebel at the notion of relying on legislative appropriations because "we don't get what we need that way."

© Copyright 2015 by Creators Syndicate Inc.

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  1. Bodies hung from bridges? In a just world, legislators would punish a prosecutor bringing such shameless hyperbole into the public forum.

    1. Meh, It's not as if he brought up wood-chippers and Hell's special spots.

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  2. If the cops aren't allowed to steal your stuff, who's going to keep criminals from stealing your stuff? Allowing this kind of thing turns cops into the exact thing they pretend to loathe.

  3. As Steve Jones, the Tennessee prosecutor, explained, law enforcement officials rebel at the notion of relying on legislative appropriations because "we don't get what we need that way."

    What they need is an introduction to the woodchipper.

  4. See, you can indict a ham sandwich.

  5. Count Sen. Diane Feinstein as one staunchly in favor of civil asset forfeiture (we should call it by what it is: "stealing by cops").

    I wrote her a letter (as well as Sen. Barbara Boxer) and she sent a letter back saying essentially "it's an important tool in fighting crime, blah blah blah."

    I don't see how throwing due process out the window makes it a tool to fight crime. If anything, it makes it a CRIME, purportedly to fight crime. Essentially, the cops are attacking first, sort of like a pre-emptive military strike on a supposed enemy.

    But that seems to be the modus operandi of all empires, past and present. Name a target, attack it first, claim it was in self-defense.

    1. I refer to it as Theft Under Color of Law, which I believe has a nicer ring.

  6. "Licensed to steal" To protect and serve...their own personal, selfish interests.

  7. The sub-head reads as follows:

    Legislators should ignore the self-interested fearmongering of cops and prosecutors who oppose forfeiture reform.

    They absolutely should, but they haven't. Worse yet, they obviously have failed. Will they "straighten up and fly right", based on past performances,not likely absent an unending wave of constituent demands for the unfortunately needed and long overdue reform. In short, reform is in the hands of the electorate, who all to often are to involved in the football, basketball or hockey "wars" served up than they are in preserving the few rights they retain or, perish the thought, enhancing their rights.

    1. Got a flash, for all the Gordons out there. Legislators like asset forfeiture, too.
      Funding police departments aren't big vote buying schemes so, anytime they can save a buck from the constabulary, it is another one they can spend on giving freebies in exchange for votes.
      The biggest problem is that the courts, who should have put a stop to this, get their money from the same legislators and don't want to see some of theirs go to le gendarmes.

      1. Yeah, I call bullshit. Running as a law and order candidate has always gotten votes, and that's before you factor in the effect of the police and firefighter unions, especially in big cities and on the two left coasts.
        Tell me that modern building codes and materials haven't made fires much rarer, yet no one runs on a platform of closing the extra firehouses.

      2. That's why I haven't really been pushing for a constitutional amendment outlawing civil asset forfeiture, even though it's very badly needed. Too many legislators at every government level are cop-suckers.

    2. The "electorate" has always elected those who promised to force people to pay for things they don't want. The "electorate" and the "elected" are both evil. The "needed and long overdue reform" is the extinction of evil.

  8. How long is it going to take to get a civil forfeiture case in front of SCOTUS so they can kill this entire idea that property can commit crimes?

    1. My bet is they won't touch it, at least not in any case that would set a binding precedent to end the theft. My guess is before too much longer some local constabulary will select the wrong victim, and arouse the great ire of someone well enough connected to arrange something similar to a perfectly fitting pair of cement overshoes perfectly sized (how conVENient?) to fit one of the best known high producers in this racket. Just like back in TcheeCAAHgo when Tommie sent his Boys aroun' ta have a tawl wit Jimmie an da boyz "about dat bizniss" and were just a bit too harsh. Guido came and paid a call, and things went better after that.

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