Wirth Law Office
The nationwide investigative journalism project ProPublica has released a report detailing nightmare scenarios surrounding the widely used civil forfeiture process. Under civil asset forfeiture laws state, local and federal agencies routinely seize property from individuals who sometimes have not been convicted – or even charged – with a crime.
According to ProPublica, the city of Philadelphia seizes 100 or more private residences each year, netting an annual $1 million windfall to police and prosecutors budgets by way of real estate sales alone. All told, the Philly DA netted $5.9 million from its forfeiture budget.
ProPublica’s narrative highlights cases where long-time family homes were seized from family members who had no involvement in the alleged crimes that precipitated the forfeiture process. Read the ProPublica report here: www.propublica.org
ProPublica focused on Philladelphia and Washington, but alluded to a 2010 report by the Institute for Justice called “Policing for Profit.” That report surveys civil forfeiture programs in all 50 states. For those whose property is taken by state officials, Oklahoma’s civil forfeiture laws are among the most onerous in the nation, the Institute for Justice report concluded. Download the Institute for Justice report here: Institute for Justice: Policing for Profit
According to Institute for Justice:
“Oklahoma has terrible civil forfeiture laws, and its statutes give law enforcement significant financial incentives to seize property. To forfeit property in civil proceedings, the government typically must show that property is related to a crime and subject to forfeiture by a preponderance of the evidence. In all civil forfeitures in Oklahoma, owners are presumed guilty and must contest forfeiture by proving they did not know property was being used illegally. Worse, law enforcement receives 100 percent of the proceeds from civil forfeiture.”
If the routine aberrations of asset forfeiture aren’t bad enough to make you fear Big Brother, recent events in Caddo County might tip the scale. There, a private company was paid a 25 percent commission on forfeited assets its employees helped seize under the auspices of a “training program.” A judge warned the private operators might face jail time if they continued conducting traffic stops as part of the program.
Asset Forfeiture Reform Garners Bipartisan Support
The politics of the ProPublica report are interesting. The data-centric investigative journalism outfit has won a Pulitzer Prize and co-publishes content with some of the top newspapers in the nation, including New York Times and USA Today. But many observers count it among left-leaning news outlets. Institute for Justice’s four primary “pillars” might be described as libertarian but their concerns are easily recognized as widely shared right-wing planks, including “economic liberty” and “private property.”
What that means is that concern about civil asset forfeiture laws is not now limited to left wing ideologues, if it ever was. Civil forfeiture laws came into their own as part of the Reagan Revolution that escalated Pres. Richard Nixon’s “War on Drugs.” Following federal passage of civil forfeiture laws, states climbed on board. In some quarters, asset forfeiture was seen as a right-wing initiative. Real world experience suggests otherwise. Easy money smells the same to some public officials no matter their party affiliation.
Some state’s legislatures have drawn lines to protect the public from money-hungry prosecutors and police agencies. A typical firewall found in some state statues requires that seized assets be used by someone other than the prosecutors who seize the assets. Critics of those firewalls have said they don’t stop police from policing for profit. Instead, they encourage local participation in federal programs that allow local governments to share proceeds from federal forfeitures when the local agency helps seize the assets.
Forfeiture Reforms Proposed
The ProPublica report also surveyed reform proposals. A recurring theme is the right to representation. Those arrested for petty misdemeanors – and certainly for felonies – have a right to representation if they cannot afford an attorney. Penalties in some of those cases may be no more than probation, but the defendants who can’t afford representation get a court appointed lawyer.That’s not the case in civil asset forfeiture, where the financial stakes can be much higher.
A person fighting a forfeiture enriched prosecutors office to prevent loss of a long-time family home may not have an opportunity to get a court appointed attorney. They might not be advised of their legal rights. They must either hire an attorney at their own expense or represent themselves. The problem is, the government might have seized their assets, leaving a person no resources with which to hire an attorney to prove the money should not be forfeited.
Another recurring theme in civil forfeiture reform proposals calls for forfeitures to be part of criminal law, not civil law. Asset forfeiture is often called criminal asset forfeiture, but that’s a bit of a misnomer. Assets are taken even though the person from whom they were taken may not have committed a crime.
In a true criminal asset forfeiture system, assets could only be taken after a person has been convicted in criminal court, where the burden of proof to obtain a conviction is much higher. Under the current civil asset forfeiture laws, prosecutors must only show it was more likely than not that property was used in relation to a crime – usually a drug crime. Institute for Justice sees Oklahoma system as one where property owners are presumed guilty unless they prove otherwise.
Another recurring concern about civil forfeitures involves oversight. Under our tripartite system of government, ideally legislative bodies approve budgets for executive bodies. That provides a degree of electoral oversight. Civil forfeiture funds are often spent with little or no legislative oversight. They’re essentially used as slush funds prosecutors or police can use at their discretion.
