The Wrongologist

What’s
Wrong Today:

Yesterday
the Wrongologist reported
on the militarization of local police departments. The equipment that enables
that trend is provided by the Federal Government, primarily via a DHS grant program that allows
police departments to purchase military-style equipment:

Today,
we examine the civil forfeiture element of that program which is used as a funds-raising
tool by the Feds as well as municipalities and police departments around
America. Sarah Stillman has written a detailed, must-read New Yorker story that describes
civil forfeiture today.

Forfeiture
in its current form began with federal statutes enacted in the 1970’s. It was
part of the war on drugs and was aimed at organized-crime bosses and drug
lords. Law-enforcement officers were empowered to seize money and goods tied to
the production of illegal drugs. Later amendments allowed the seizure of
anything thought to have been purchased with ill-gotten funds, whether or not
it was connected to the commission of a crime. Forfeiture remained infrequently
used until 1984, when Congress passed the Comprehensive Crime Control Act
(CCCA). It established a special fund that turned over proceeds from
forfeitures to the law-enforcement agencies responsible for them.

Civil
forfeitures are now a big revenue generator for police departments in many
areas of the country. As Stillman’s article records, in some places, such as a stretch of road in Tenaha, a town in Shelby
County Texas that is the cornerstone of her article, civil forfeiture is a
mechanism for local cops to separate people with out-of-state or rental license
plates from their jewelry and cash. In other places, cars and even homes are
the objects of the official seizures.

As
Stillman explains:

In
general, the law says that you don’t have to be found guilty to have your
assets claimed by law enforcement; in some states, suspicion on a par with
“probable cause” is sufficient. Nor must you be charged with a crime, or even
be accused of one. Unlike criminal forfeiture, which requires that a person be
convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit
filed directly against a possession, regardless of its owner’s guilt or
innocence. From Stillman:

Whether
in the absence of finding guilt, the state should be able to take possession of
your property, has been debated since Colonial times. The English Crown issued
“writs of assistance” that permitted customs officials to enter homes or
vessels and seize whatever they deemed contraband. The new nation’s Bill of
Rights forbid “unreasonable searches and seizures” and promised that no one
would be deprived of “life, liberty, or
property, without due process.”

But,
Congress soon authorized the use of civil-forfeiture against pirates and
smugglers. It was easier to arrest a vessel and seize its cargo than to try to
prosecute its owner, who might be an ocean away.

In
the ensuing decades, the practice fell into disuse and aside from a few brief
revivals, remained mostly dormant for the next two centuries, but now, you see improbable
case names such as United States v. Approximately 64,695 Pounds of Shark Fins.

This is
where civil forfeiture started going off the rails. Stillman details a
mind-numbing number of appalling stories, including a minister having cash from
collections taken, and a couple carrying cash to buy a used car who, when
pulled over, were threatened with felony charges and having their kids placed
in foster care unless they signed over their cash. Often, it’s hard for people
to fight back. They are too poor; their immigration status is in question; they
just can’t sustain the burden of taking on local bureaucracies.

Forfeiture
revenues have been staggering. While there are no accurate state level statistics,
at the Justice Department, proceeds from forfeiture soared from $27 million in 1985 to nearly $4.2 billion last year.
And don’t kid yourself that this practice is about stopping big criminals:
(emphasis by the Wrongologist)

And
Stillman shows that civil forfeiture statutes continue to proliferate at the
state and local level, and controls have often been lax. Many states, facing
fiscal crises, have expanded use of their forfeiture statutes, and made it easier
for law enforcement to spend the revenue however they see fit. In some Texas
counties, nearly 40% of police budgets come from forfeiture. (Only one state,
North Carolina, bans the practice, requiring a criminal conviction before a
person’s property can be seized.)

The worst
is that there’s no ready defense against this sort of thing, except not living
or vacationing in states that allow police to grab and keep the property of
people they think they can get away with victimizing. The case that Stillman
uses as the backbone of her story was fought for years before a settlement was reached with
the town.

You should
read Stillman’s
piece in full. And don’t even think of driving in East Texas.

Most
politicians love the police and run on being tough on crime. Civil forfeiture
will not be “reformed” except by recognizing that the 4th Amendment prohibits
seizing property absent criminal charges. That isn’t going to happen.

Then
there is the 5th Amendment, the one that says “No person shall be …
deprived of life, liberty, or property, without due process of law…”

Time to
wake up and admit that there’s been an unseen coup d’état in this country. We need to forge a new consensus around supporting
the entire Bill of Rights.

You have
been warned, comrade.