Why you should care
Because even someone else’s crime could cost you a fortune.
After a man is arrested for selling $40 worth of drugs outside his family home in Philadelphia, his law-abiding parents are evicted and watch as police seize their house as government property. A woman loses her car in Albuquerque after her son took it without her knowledge and is accused of driving drunk. Authorities take $50,000 in cash from a touring Christian band pulled over for a broken taillight in Oklahoma. These stories, and others like them, sound unbelievable. But the seizures are legal — and they’re common practice. In fact, police departments across America have become increasingly reliant on them to fund their own war on drugs.
While horror stories of forfeiture abuse have percolated beneath the public consciousness the last few years, it’s only recently that lawmakers have shouldered serious legislation.
Through a process called public asset forfeiture, authorities can take property associated with alleged wrongdoing without ever entering a courtroom. While horror stories of forfeiture abuse have percolated beneath the public consciousness the last few years, it’s only recently that lawmakers have shouldered serious legislation. So far this year, at least 22 states have introduced laws to limit civil asset forfeiture, according to the Center for Public Integrity, and at least nine states — including Florida, Maryland, New Mexico and Wyoming — have already passed reforms. Significant legislation rings from the whitewashed walls of Washington, D.C., where the federal Due Process Act is alive but has not yet passed, to the sunny climes of California, where the governor just signed a state assembly–backed bill. “It puts people in the nightmare situation of potentially losing their property forever without ever being accused of a crime,” says Institute for Justice attorney Rob Peccola. “The only people who support civil forfeiture are people who personally profit from it.”
The idea behind public asset forfeiture has roots in age-old maritime tradition, where the king was able to possess ships that didn’t observe British law, and the first U.S. Congress used it to quickly settle customs disputes rather than try a shipowner leagues across the sea. Still, the practice fell from popularity, until it was revived before the turn of the century as a creative way to battle drug cartels. And certainly it’s useful for law enforcement to defund criminal syndicates quickly and efficiently, when warranted. Yet present laws not only allow forfeiture but add a financial incentive: Only eight states bar the use of forfeiture proceeds by law enforcement, while the full amount goes straight to police pockets in at least half the states, according to the Institute for Justice, which has compiled perhaps the most comprehensive look at the issue with its Policing for Profit project. In most forfeiture cases today, the property is charged with the crime — not the person — so the owner has no constitutional right to a public lawyer.
Even if states pass laws removing that profit motive, experts say the measures will fall short without action from the nation’s next president. That’s because of a loophole called equitable sharing, in which local police forces team up with the U.S. Department of Justice on joint investigations. Afterward, they get a cut of the proceeds, in most cases circumventing any state laws that may ban the practice. That climate makes forfeiture policy one of the few areas where Donald Trump or Hillary Clinton could change America on Day 1 — with or without help from a cooperating Congress. Neither has focused prominently on forfeitures. But an incoming administration could have the new attorney general discontinue equitable sharing — closing hundreds of millions of dollars’ worth of seizures and making police less dependent on the funds, says policy expert Jason Snead.
It speaks to the issue’s broad appeal that Snead and his employer, the conservative Heritage Foundation, have taken up the anti-forfeiture banner alongside ardent left-leaners like the Center for American Progress, the ACLU and the NAACP. Bipartisan concerns have increased as forfeiture activity ramped up since it was first adopted in the Ronald Reagan days. In 1986, the feds took in $93.7 million from forfeitures, but by 2014, that number had reached $4.5 billion. “They didn’t put enough protections in place,” says the Justice Action Network’s Jenna Moll, who has worked on legislation being considered in Pennsylvania and Ohio. Most experts point to New Mexico, Nebraska and Washington, D.C., as the gold standards of reform, passing laws that ended property confiscation without a conviction while severely limiting equitable sharing deals. States like Florida and Montana have shifted the burden of proof in court onto government lawyers. And some have encouraged broader transparency, as is the case in Georgia and Virginia, which now require that property seizures be reported publicly.
Forfeiture reform faces fierce opposition from law-enforcement groups, who insist the funds are necessary to take on well-greased criminal organizations, and they’ve stymied, stalled or watered down reform legislation when possible. The California Police Association opposed efforts in 2015, arguing a reform bill “would be severely problematic” for cops because it required a criminal conviction for seizures of more than $25,000. The CPA supported this year’s version, calling it “a compromise” that ensures “law enforcement has the tools necessary to combat the gangs and drug traffickers damaging our communities.” But foes in other states, most notably in Oklahoma, have remained stubborn, and many lawmakers are loathe to pick a fight with law enforcement.
As the political battle is waged, the spoils of forfeiture aren’t hidden in plain sight, but sold in it. Take a glance at the U.S. Marshals Service website — there’s new jewelry, artwork to spice up an apartment and even a new boat that could be bid on. Sure, it could come at someone else’s expense, but hey, you might score a sweet deal. You know the government already did.