Trump Should Be Appalled by Police Asset Forfeiture Cops can seize cash, cars and real estate without its owner ever being charged or convicted of a crime. By Lee McGrath and Nick Sibilla
https://www.wsj.com/articles/trump-should-be-appalled-by-police-asset-forfeiture-1488751876
America’s sheriffs have given President Trump a woefully inaccurate view of civil asset forfeiture—the process through which police seize, and prosecutors literally sue, cash, cars and real estate that they suspect may be connected to a crime. “People want to say we’re taking money and without due process. That’s not true,” a Kentucky sheriff told the president last month at a White House meeting. Critics of forfeiture, the sheriff added, simply “make up stories.”
In fact, thousands of Americans have had their assets taken without ever being charged with a crime, let alone convicted. Russ Caswell almost lost his Massachusetts motel, which had been run by his family for more than 50 years, because of 15 “drug-related incidents” there from 1994-2008, a period through which he rented out nearly 200,000 rooms.
Maryland dairy farmer Randy Sowers had his entire bank account—roughly $60,000—seized by the IRS, which accused him of running afoul of reporting requirements for cash deposits. Mandrel Stuart had $17,550 in receipts from his Virginia barbecue restaurant confiscated during a routine traffic stop. A manager of a Christian rock band had $53,000 in cash—profits from concerts and donations intended for an orphanage in Thailand—seized in Oklahoma after being stopped for a broken taillight. All of the property in these outrageous cases was eventually returned, but only after an arduous process.
Photo: istock getty
This kind of abuse has united reformers on all sides of the political debate: progressives, conservatives, independents, even a few former drug warriors. Since 2014 nearly 20 states and the District of Columbia have enacted laws limiting asset forfeiture or increasing transparency. Nearly 20 other states are considering similar legislation. Last week a reform bill passed the Indiana Senate 40-10. It would require a criminal conviction before a court can declare a person’s assets forfeited.
Another good step for state and federal legislators would be to bar agencies from keeping the money they seize. Today more than 40 states and the federal government permit law-enforcement agencies to retain anywhere from 45% to 100% of forfeiture proceeds. As a result, forfeiture has practically become an industry.
The Institute for Justice, where we work, has obtained data on asset forfeiture across 14 states, including California, Texas and New York. Between 2002 and 2013, the revenue from forfeiture more than doubled, from $107 million to $250 million. Federal confiscations have risen even faster. In 1986 the Justice Department’s Assets Forfeiture Fund collected $93.7 million. In 2014 the number was $4.5 billion.
Allowing police and prosecutors to keep part of what they confiscate gives them an incentive to target cash instead of criminals. In 2011 a Nashville TV news station investigated seizures on nearby interstate highways. Drugs usually came in on the eastbound lanes, while the money would flow out on the westbound lanes. The reporters found that police made “10 times as many stops on the money side.” They were less focused on stopping the drugs than on grabbing the cash.
Or consider a program under the Drug Enforcement Administration for paying confidential sources, the subject of a blistering federal audit last fall. An informant who provides intelligence resulting in forfeiture can receive as much as 25% of the confiscated property’s value—up to $500,000. The audit examined nine DEA informants in the parcel industry who offered tips in 205 cases. That led to $5.8 million in seizures and $1.2 million in payments to sources, but only a single confiscation of an illegal substance.
To prevent these abuses, lawmakers in Alaska, Connecticut, North Dakota and Texas have sponsored legislation that would send confiscated proceeds directly to the general fund of the state or county. Similar measures in Arizona and Hawaii would restrict forfeiture proceeds to being used to compensate crime victims and their families.
Yet sometimes police circumvent state restrictions by routing forfeitures through a federal program known as “equitable sharing.” By cooperating with the feds they can seize property for forfeiture under federal law, and then receive a cut—up to 80% of the proceeds. From 2001-14 nearly 62,000 people had $2.5 billion confiscated under equitable sharing, according to the Washington Post. All of those seizures occurred “without search warrants or indictments.”
Fortunately, states are now closing this loophole, too. Last fall California Gov. Jerry Brown signed a bill that, in most cases, requires a criminal conviction before any California agency can receive equitable-sharing proceeds. In January Ohio Gov. John Kasich approved legislation to ban his state’s police and prosecutors from transferring seized property to federal agencies unless its value is more than $100,000. Similar reforms have been introduced in Colorado, New Hampshire and a handful of other states.
Interest in stopping civil forfeiture has never been greater, and it isn’t based on fables. We hope Mr. Trump will take a fresh look and seize the opportunity to defend American property rights—and return law enforcement’s focus to prosecuting criminals.
Mr. McGrath is senior legislative counsel and Mr. Sibilla is a communications associate at the Institute for Justice.
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