The asset forfeiture racket

Reason:

The 1984 law lowered the bar for civil forfeiture. To seize property, the government had only to show probable cause to believe that it was connected to drug activity, or the same standard cops use to obtain search warrants. The state was allowed to use hearsay evidence—meaning a federal agent could testify that a drug informant told him a car or home was used in a drug transaction—but property owners were barred from using hearsay, and couldn’t even cross-examine some of the government’s witnesses. Informants, while being protected from scrutiny, were incentivized monetarily: According to the law, snitches could receive as much as one-quarter of the bounty, up to $50,000 per case.

According to a 1992 Cato Institute study examining the early results of the Comprehensive Crime Control Act, total federal forfeiture revenues increased by 1,500 percent between 1985 and 1991. The Justice Department’s forfeiture fund (which doesn’t include forfeitures from customs agents) jumped from $27 million in 1985 to $644 million in 1991; by 1996 it crossed the $1 billion line, and as of 2008 assets had increased to $3.1 billion. According to the government’s own data, less than 20 percent of federal seizures involved property whose owners were ever prosecuted.

More than 80 percent of federal seizures are never challenged in court, according to Smith. To supporters of forfeiture, this statistic is an indication of the owners’ guilt, but opponents argue it simply reflects the fact that in many cases the property was worth less than the legal costs of trying to get it back. Under the 1984 law, forfeiture defendants can’t be provided with a court-appointed attorney, meaning an innocent property owner without significant means would have to find a lawyer willing to take his case for free or in exchange for a portion of the property should he succeed in winning it back. And to even get a day in court, owners were forced to post a bond equal to 10 percent of the value of their seized property.

The average Drug Enforcement Administration (DEA) property seizure in 1998 was worth about $25,000

[...]In one highly publicized example from the 1990s, Jason Brice nearly lost the motel he had bought and renovated in a high-crime area of Houston. At the request of local authorities, Brice hired private security, allowed police to patrol his property (at some cost to his business), and spent tens of thousands of dollars in other measures to prevent drug activity on the premises. But when local police asked Brice to raise his rates to deter criminals, he refused, saying it would put him out of business. Stepped up police harassment of his customers caused Brice to eventually terminate the agreement that had allowed them latitude on his property. In less than a month, local and federal officials tried to seize Brice’s motel on the grounds that he was aware of drug dealing taking place there. Brice eventually won, but only after an expensive, drawn-out legal battle.

[...]National Public Radio has reported that between 2003 and 2007, the amount of money seized by local law enforcement agencies enrolled in the federal forfeiture program tripled from $567 million to $1.6 billion. That doesn’t include property seized by local law enforcement agencies without involving federal authorities.

[...]If 10 defendants are convicted in a drug conspiracy case and a court enters a total money judgment for $10 million, all 10 are liable until the $10 million is paid in full. If the five most responsible parties are sent to prison for 40 years, the remaining five—be they mid-level dealers, foot soldiers, or a girlfriend who forwarded a few phone calls—are liable for the entire $10 million, no matter who actually got the money in the end.

[...]Criminal forfeiture can also prevent defendants from effectively contesting the charges against them. When the DEA accuses a doctor of illegally prescribing pain medication, for example, one of the first actions it takes is to freeze his assets for possible forfeiture. Since most doctors make their entire living from their practice, nearly everything they own can be frozen. Many accused doctors therefore don’t have the resources to hire legal representation, much less experts to counter government assertions that they’re prescribing controlled substances outside the normal practice of medicine. Forfeiture makes it nearly impossible for them to mount a credible defense.

In addition to raising questions of fairness, forfeiture has warped the priorities of law enforcement agencies. In 2008 the Bureau of Alcohol, Tobacco, Firearms, and Explosives asked for bids from private contractors on 2,000 Leatherman pocket knives for its agents, to be inscribed with the phrase “Always Think Forfeiture,” a play on the agency’s traditional “ATF” initials. The agency rescinded the order after it was reported in the Idaho Statesman, but critics said it betrayed the ethic of an organization more interested in taking people’s property than in fighting crime.

[...]Almost half of surveyed police departments with more than 100 law enforcement personnel said forfeiture proceeds were “necessary as a budget supplement” for department operations.

[...]Forfeiture may also undermine actual enforcement of the law. In a 1994 study reported in Justice Quarterly, criminologists J. Mitchell Miller and Lance H. Selva observed several police agencies that identified drug supplies but delayed making busts to maximize the cash they could seize, since seized cash is more lucrative for police departments than seized drugs. This strategy allowed untold amounts of illicit drugs to be sold and moved into the streets, contrary to the official aims of drug enforcement.

[...][T]hings aren’t always as they seem. In Missouri, for example, forfeited property is supposed to go to the state’s public schools. But in 1999 a series of reports in The Kansas City Star showed how Missouri police agencies were circumventing state law. After seizing property, local police departments would turn it over to the DEA or another federal agency. Under federal law, the federal agency can keep 20 percent or more of the money; the rest, up to 80 percent, goes back to the local police department that conducted the investigation. None of the money in these cases goes to the schools.

The Kansas City Star investigation made national news at the time, but Kessler says the practice of circumventing earmarking through federal “adoption” is now common all over the country.