Seizing Reform?

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Well, you can knock me over with a spotted owl feather!

Eric Holder — yes, the same leftist hack who has turned the US Attorney General’s office into the Obama Enforcement Mob — has done something for which I commend him.

The Wall Street Journal reports that the Justice Department will stop participating in asset seizures by local police. And it quotes Holder as saying that this move is only “the first step in a comprehensive review” of the feds’ asset-forfeiture program.

Local police have increasingly used the decades-old asset-seizure programs to grab cash and other assets from people in order to augment their own budgets. Asset-forfeiture laws are a powerful tool, allowing police and prosecutors to seize assets from presumed perps without a conviction, or without even a trial — indeed, without even a search warrant.

Police all over the country started to move from seizing the property of mobsters and dope dealers to seizing the property of anyone they suspected of criminality of any kind.

These laws were allegedly created with the good intention of combatting organized crime. The idea was to stop crooks from amassing huge stores of loot that would make it worthwhile for them to risk going to jail. However, seizing their property before any trial conveniently had the further advantage for police and prosecutors of making it hard for these evil criminals to prove their innocence in the courtroom, because they no longer had any money to hire good attorneys!

But, as the cliché rightly has it, the road to hell (or at least prosecutorial tyranny) is paved with good intentions.

Over the years, the feds have increasingly colluded with municipal police agencies to seize assets of presumed bad actors. These actions are called “federally adopted forfeitures.” By partnering with the feds, local cops can keep much more of what they seize than what many state laws allow. In effect, federal adoption allows local agencies to evade state laws. In these seizures, the local cops select a target, seize his assets (cash, cars, boats, jewelry, or whatever else the cops want) on suspicion of violating the law, and then invite the feds to join in. The feds will then liquidate the assets and hand over a major chunk of the money to the cops.

You could have predicted what subsequently happened. As quickly as you can utter the words “perversion of purpose by corrupt cops,” police all over the country started to move from seizing the property of mobsters and dope dealers to seizing the property of anyone they suspected of criminality of any kind — indeed, even if they had no idea what the criminality might be.

This led to an exponentially increasing explosion of seizures from the 1980s on. In the last seven years alone, there have been 55,000 such seizures, with a total booty of $3 billion — a bountiful boon to supposedly cash-strapped local police departments.

This obvious abuse of what was a dubious legal mechanism to begin with has led to a rare convergence of thought among what are normally political opponents — libertarians, modern liberal groups, and conservatives concerned about due process. The ACLU welcomed Holder’s move, as did conservative Sen. Charles Grassley (R-IA). As Grassley put it, “The rule of law ought to be about protecting innocent people. Too often, we’ve seen just the opposite with civil forfeiture laws. The practice up to this point had perverse incentives.”

He added that he wanted to see exactly what Holder plans to do — not an injudicious stance to take, given Holder’s less than stellar performance in office.

The WSJ followed up its report with an editorial approving the Justice Department’s move. It notes that in those cases in which the feds “adopt” a local case, they keep 20% and give the local police the remaining 80%. That’s perverse incentive, indeed. And the Journal quotes data from the estimable Institute for Justice showing that 80% of citizens whose property is seized are never charged with any crime whatsoever.

Forget shows like the old Miami Vice; now the people targeted are mainly small-time operators, not major drug kingpins.

Of course, as the editorial rightly notes, Holder’s action just suspends federal adoptions (as opposed to ending them outright) and exempts the DEA from the suspension (as well as cases of accused child pornographers). Still, as the old saw puts it, when a pig flies, you don’t criticize it for not staying up very long.

Credit for the rising public awareness and disapproval of civil asset forfeiture must in part be given to the Washington Post, which late last year ran an extended expose of the abuses of the program. The piece obviously hit a public nerve — nearly 2,500 comments were posted online. It opens by reporting the existence of a nationwide network of cops who are in competition to see who can expropriate the greatest amounts of citizens’ assets. This private “intelligence network” even has a name: the “Black Asphalt Electronic Networking and Notification System.” It allows cops to post pictures of the loot they have confiscated and to share information about possible targets (names, addresses, social security numbers, and even distinguishing tattoos). One cop (Deputy Roy Hain) unwittingly admitted the true motives for the network when he gloated in a self-published book, “All of our home towns are sitting on a tax-liberating gold mine.” This constitutional scholar boastfully added that we should be “turning our police forces into present-day Robin Hoods.”

Superb idea, deputy! Turn street cops into just another type of hood, liberated to shake down drivers for whatever cash they can grab. How cool!

The Post found that in the nearly 62,000 seizures made since 9/11 without either indictments or even search warrants — seizures that copped $2.5 billion for the cops! — more than half were less than $9,000. In other words, forget shows like the old Miami Vice; now the people targeted are mainly small-time operators, not major drug kingpins.

After rehearsing the evolution of the forfeiture laws in some detail, the Post recounts some of the more outrageous cases of abuse by police of this self-serving power. In one case, Ming Liu, a Chinese-born naturalized US citizen, was stopped on a freeway for doing 10 mph above the posted speed limit — hardly a major crime. Ah, but Liu was carrying $75,000 of his family’s money to buy a Chinese restaurant that they had seen advertised for sale. The deputy who stopped Liu to ticket him asked for permission to search his car. Liu, with a very limited grasp of English, allowed the cop to proceed. The cop then confiscated the cash, later claiming that Liu had given contradictory stories about his plans — which, even if true, probably just reflected Liu’s inability to speak English proficiently. The deputy then hauled the hapless gent into the department’s office and called in the US Customs and Border Protection to adopt the seizure. Hey, the cash prize here was just so sweet!

Mr. Liu hired a lawyer who fought tenaciously and successfully to get the family’s precious capital back, but it still took nearly a year for the cops to disgorge it.

In another case, two Hispanic Americans were driving a rented car on a Virginia freeway when a state trooper stopped them, allegedly for speeding and tailgating. The trooper, one C.L. Murphy, was a member of the Black Asphalt network and a “top trainer” on asset seizing. In other words, the cop was primed to seize. You might say Trooper Murphy pursues his own version of Murphy’s Law.

Over the years, many states have enacted their own forfeiture programs, often with even less oversight than the federal one.

As it happened, the two men he stopped were carrying about $28,000 in cash. Why? They were carrying money donated by their evangelical congregation — of which they were both lay ministers — for the nefarious purpose of buying land in El Salvador for a church. Just the sort of monstrous mobsters from whom the police are hired to protect us!

The men consented to a car search, and Murphy naturally grabbed the cash. He ignored their explanation of why they had the money, offering the usual rationale that he didn’t buy their outrageous story because it contained “inconsistencies.” The men deny his claim.

No matter. The cop called in Immigration and Customs Enforcement (ICE) to adopt the theft — excuse me, the “seizure.” However, to the profound dismay of the cop, his department of “Murphy law enforcement,” and ICE, the men fought back. They forced the ICE-local police mob to forfeit back the whole amount. But it took hiring a lawyer and fighting for months to get it.

A more recent report by Daniel Payne in The Federalist concerns an especially egregious case that occurred in Virginia. A SWAT team — a SWAT tream — was used to break up an unauthorized poker game. Yes, learning that ten guys were playing a friendly game of high-stakes poker, the local (Fairfax VA) cops sent in eight SWAT officers brandishing assault rifles. There was absolutely no evidence that any of the poker players was armed, or that they were posing a threat to anybody. Nor is poker playing itself against Virginia law (it is instead government-controlled).

What reason did the cops give for this threatening intrusion? They said that sometimes poker players have illegal weapons, and sometimes “Asian gangs” will “target” such games. How dare they! Don’t these gangs understand that only the cops should be free to target gamblers?

The real reason the cops acted is that they were able to grab the $200,000 the poker players had, of which they wound up pocketing 40%. That is quite a fine for playing an unauthorized game of poker! As Payne puts it, “Governments control gambling not to legitimize and sanitize the practice, but to extract as much money from the citizenry as they possibly can. In the state’s eyes, the fault of the poker players in Fairfax lay not in betting money on a card game, but in not pouring money into the state’s bank account while they were doing so.”

The capstone of the Post series was an insightful piece by two clearly unbiased experts, John Yoder and Brad Cates, surveying the sorry evolution of the federal asset seizure program from its inception to the present day. And friend, they should know: Yoder headed the Justice Department’s “Asset Forfeiture Office” — yes, there is a whole division of the department devoted to depriving citizens they view as criminals of their property — from 1983 to 1985, and Cates headed it from 1985 to 1989.

Their view is damning. What started as a tool to fight drug lords (and later, mobsters in general), the authors aver, only wound up corrupting prosecutors and police departments. Forfeiture started by targeting the cash put aside by dope dealers, which enabled them to prosper even after completing their jail time. In 1986 the program was expanded to include all assets of the alleged criminals purchased by money that was presumably obtained illegally (money floridly called “the fruit of the tainted tree”). This was expanded by the legislative creation of whole new classes of crimes, such as various types of money-laundering. Over 200 crimes were quickly added to the forfeiture roster.

Yoder and Cates note that over the years, many states have enacted their own forfeiture programs, often with even less oversight than the federal one. And (as noted in the aforementioned WSJ editorial), state and local law enforcement agencies and prosecutors routinely came to use asset seizure to fund their departments. As the authors note, “this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than an even-handed effort to enforce the law.” As they nicely conclude, forfeiture traps are the modern analogs of the old speed traps, since they are programs for selectively taxing individuals targeted on the sly — typically minorities.

Indeed, honest sirs. We have tried in the past to reform this Frankensteinian program that has not only failed to end drug-dealing and organized crime but has turned to attack the citizens it was supposedly designed to protect. The reforms were gutted by a concerted effort of lobbyists for the local police departments. I think it is time to simply end the thing, once and for all.

Forfeiture traps are the modern analogs of the old speed traps, since they are programs for selectively taxing individuals targeted on the sly — typically minorities.

A government surely should have the power to seize the assets of a citizen — but only after that citizen has been found guilty in a court of law, and only as part of appropriate punishment. A court should have the power, upon issuing a warrant or an indictment, to order the defendant not to dispose of, convey, or hide his assets, except to pay for his legal defense. But until some jury (be it criminal or civil) finds the defendant guilty, no government agency should be allowed to take those assets.

In fine, the real poisoned tree is the authoritarian idea that property is completely unrelated to its owner, so is exempt from the presumption of innocence built into our criminal (and civil) system of law. And the fruit of that poisoned tree is and always will be corruption and the abuse of power.

I would hope that such a rule would be made into not just a federal law but a constitutional amendment. Only then will this justice-subverting monster be put to the torch.




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Comments

Visitor

How convenient that the state now begins to look into this injustice, since it's primarily "their people" (i.e., friends of the corrupt state) who are subjects of the abuse.

Visitor

Any student of history will recognize asset forfeiture laws for what they really are: bills of attainder. For those who are not students of history, a bill of attainder was a declaration by government that you are an outlaw and your property forfeited t the state. There is no investigation of a crime, no indictment, no trial, no conviction. There only is a declaration and confiscation.

The United States Constitution, in Article 3, Sections 9 and 10 specifically prohibit bills of attainder to the federal government and the state governments. Giving something a different name, does not change its character. And until people wake up to what asset forfeiture really is, it will continue unabated.

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