John Yoder and Brad Cates, who headed the Asset Forfeiture Office at the U.S. Department of Justice from 1983 to 1989, slammed civil forfeiture as a “complete corruption” and “fundamentally at odds with our judicial system and notions of fairness,” in an op-ed for The Washington Post. Thanks to civil forfeiture laws, police and prosecutors don’t need to charge someone with a crime to seize and keep their property. Yoder and Cates “were heavily involved in the creation of the asset forfeiture initiative at the Justice Department,” they write, but after seeing civil forfeiture become a “gross perversion of the status of government amid a free citizenry,” the two now believe it should be “abolished.”
Their criticisms come on the heels of an extensive, three-part investigation by The Washington Post into highway interdiction. Since 9/11, without warrants and despite a lack of criminal charges, law enforcement nationwide has taken in $2.5 billion from 61,998 cash seizures under equitable sharing. This federal civil forfeiture program lets local and state law enforcement literally make a federal case out of a seizure, if they collaborate with a federal agency. Not only can they then bypass state forfeiture laws, they can pocket up to 80 percent of the proceeds. So of that $2.5 billion seized through equitable sharing, local and state authorities kept $1.7 billion for their own uses.
In order to seize cash, police typically pulled drivers over for minor traffic infractions. During the stop, police would look for “indicators” of suspicious, criminal activity. Tinted windows, air fresheners, trash in the car, “a profusion of energy drinks,” “a driver who is too talkative or too quiet” and signs of nervousness have all been considered indicators. For one Florida sheriff, “cars obeying the speed limit were suspect—their desire to avoid being stopped made them stand out.”
On the grounds that a driver is sufficiently suspicious, police then have the authority to search the car with a drug dog. If the dog alerts (and there are significant concerns about their accuracy), police then have probable cause to seize property owned by the driver. After police seized cash, the government usually wins: The Washington Post found that out of nearly 62,000 cash seizures since 9/11, in only 4,455 cases—seven percent—did the government agree to return at least a portion of the money taken.
Vincent Costello was one of them. Driving down to fix up a home in Florida with his girlfriend, the two were pulled over in May 2010 by Deputy Mason Ashby for a cracked windshield. During the stop, Ashby claimed he smelled marijuana and searched the van. No drugs were found. But the deputy did find over $30,000 in cash. Ashby contacted another deputy, a member of a regional DEA task force. Despite the pesky fact that they didn’t find any drugs, police seized all of Costello’s cash.
After he hired an attorney, the government offered to settle his case. But Costello would only get half of his money back. With his legal fees topping $9,000, Costello kept just $7,000—less than a quarter of what was originally seized. “Why would [they] give anything back if they thought you were guilty?” he told The Washington Post.
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Since equitable sharing is a federal program, it can be very difficult to prevent law enforcement from participating, even in states that have strong protections for property owners. In Utah, voters, by a margin of 2:1, overwhelmingly backed an initiative that overhauled the state’s civil forfeiture laws and sharply curtailed involvement in equitable sharing in 2000. Under these short-lived reforms, just $3,357 was transferred to Utah in fiscal year 2002 through equitable sharing. One year later, that number was $0.
Undaunted, law enforcement lobbied heavily and convinced state lawmakers to pass a bill in 2004, weakening the initiative. It had been the first time since the 1960s that the Utah legislature had overturned a citizen ballot initiative. With the reforms gutted, Utah law enforcement could continue to police for profit. Over the past two years, Utah law enforcement has received over $2.8 million from equitable sharing.
The lure of equitable sharing is even more pronounced in North Carolina, the only state without civil forfeiture. Law enforcement there can only take property after a person has been convicted of a crime and gain nothing after a property has been forfeited. Yet by partnering with federal agencies, police in North Carolina are doing an end-run around state law. They’ve done so with gusto, seizing over $130 million under equitable sharing, the fifth most of any state. Of that, North Carolina law enforcement kept $96.9 million.
While the Post investigation focused on highway interdiction, civil forfeiture is by no means limited to drivers. The Institute for Justice has represented a motel owner in Massachusetts, a California landlord, grocery store owners in Michigan, and just launched a major class-action lawsuit on behalf of homeowners in Philadelphia.
Across the country, 298 departments and 210 task forces, ranging from tiny Estelline, Tex. to Philadelphia, have seized the equivalent of at least 20 percent of their budgets. Police departments have become “dependent, if not addicted to that revenue stream,” noted Norm Stamper, former Seattle Chief of Police and now an advisory board member of Law Enforcement Against Prohibition. “It’s when that revenue becomes a line item in next year’s budget that you’re dealing with I think a corrupt practice,” he added.
The notion that civil forfeiture can be a perverse incentive is further bolstered by a new IJ report, “Bad Apples or Bad Laws?” Using experimental economics, researchers at Chapman University created a video game that split participants into two groups: red for sheriffs, blue for citizens. When rules were in place that mimicked civil forfeiture, sheriffs took more property (as shown in the video below):
These takings also fostered ill will between the two groups, with blue participants making comments like “he has too much power,” “red has no incentive to help us” and “some reds just wanna see the world burn.” Likewise, civil forfeiture is overwhelmingly unpopular.
Prospects for reform are starting to brighten. Earlier this year, Minnesota enacted a landmark law that requires a criminal conviction or its equivalent before the government can forfeit property. In Congress, Sen. Rand Paul has proposed the Fifth Amendment Integrity Restoration (FAIR) Act, which would largely end equitable sharing. Similarly, in the House, Rep. Tim Walberg has sponsored a bill that, in his words, would require the U.S. Attorney General “to certify that equitable-sharing agreements are not entered into simply to get around state laws that would prohibit a forfeiture.”
Police are sworn to protect the public, not to profiteer. “The police belong to the people,” remarked Stamper. “Not the other way around.”
