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Harris Sherline: Asset Forfeiture Laws Amount to Legal Theft
A few years ago, a notice in one of Santa Barbara County’s local newspapers highlighted an issue that has been on the back burner of public awareness for far too long: asset forfeiture laws. The notice listed 13 cases in which the District Attorney’s Office had instituted proceedings to forfeit assets that had a total estimated value of $161,409.
The state Attorney General’s Office reported that 3,988 forfeiture proceedings were initiated in 2004, valued in excess of $28 million. In that same year, 3,512 forfeiture cases were completed and more than $22 million disbursed.
Where does that money go?
In California, 1 percent is distributed to a nonprofit entity for the purpose of training prosecutors in asset forfeiture laws, 10 percent goes to the prosecutorial agencies that prosecute the various forfeiture actions, 24 percent goes to the State General Fund and 65 percent is distributed to the state and/or local law enforcement agencies that participate in the seizure. The local jurisdictions are required to put 15 percent of any money they derive from this source into a special fund for the “sole purpose of funding programs to combat drug abuse and divert drug activity.” The remaining 85 percent, or 55 percent of the total, can be used as they see fit.
How many people know they can lose their car, home, boat, airplane or other property if it is connected with certain types of illegal activity, even if they are completely unaware of it (say, in a situation that involves a tenant)?
The problem has become so egregious that in some instances, such as certain environmental or drug laws, the element of criminal intent is not even required to charge someone with a crime or confiscate their property.
The Media Awareness Project reported, “Another Forfeiture Outrage: The Eighth Circuit Court of Appeals has ruled that police may keep the $124,700 they seized from Emiliano Gonzolez, an immigrant who by all appearances was attempting to use the money to start a legitimate business.” In spite of the lower court’s ruling that Gonzolez’s witnesses “were credible enough” to convince it that he was telling the truth, on appeal he lost the lifelong savings he, “his friends and relatives had pooled to start a business. No charge and no conviction were necessary.”
The aspect of this case that was particularly absurd is the fact that the “money,” not Gonzolez himself, was found guilty of drug crimes. Unfortunately, when it comes to asset forfeiture laws, turning logic on its head is nothing new.
In an Institute for Justice article, Tim Keller offered the following observations:
“Civil forfeiture actions, which arise from a legal fiction that treats inanimate objects as if the objects acted to assist in the commission of a crime, can be filed even when the property owner is never charged with a crime. Under Arizona’s forfeiture law, prosecutors and police keep confiscated assets — giving them a direct financial stake in the outcome of forfeiture proceedings ...”
“Arizona law enforcement agencies at both the state and local levels have generated $64.5 million in revenue from forfeiture cases. For many agencies, forfeitures constitute a sizable percentage of their budgets. For example, in 2002, the Arizona Attorney General’s Office obtained more than $2 million in forfeiture revenue, most of which went to pay for regular salaries as well as overtime pay and medical benefits. Statewide, nearly one out of every five forfeited dollars spent (almost $11 million) went directly into the pockets of prosecutors and police in the form of employee compensation.”
The Institute for Justice also reported on a New Jersey case in which Carol Thomas of Millville, N.J., had her 1990 Thunderbird seized because her 17-year-old son was arrested and pleaded guilty to selling marijuana to an undercover officer while using her car without her knowledge or consent. The Cumberland County Sheriff’s Office pursued confiscation of the car in a separate civil action, even though no drugs were found in it and it was clear that she was not aware of and did not consent to her son’s actions. The Institute for Justice won the return of the car and Thomas, who was a seven-year veteran officer with the Sheriff’s Office at the time, subsequently left the force and went on to fight abusive forfeiture laws.
In a 1992 Policy Analysis report, the Cato Institute noted that in the seven years from 1985 to 1992, the total value of federal asset forfeitures increased more than 1,500 percent — to more than $2.4 billion, including more than $643 million for the Justice Department in fiscal year 1991 alone.
Asset forfeiture has clearly become big business.
Writing in Libertarian World, James Bovard noted: “Mass confiscation has become politically fashionable. Politicians and the courts have created an overwhelming presumption in favor of the government’s right to seize control over private land, private homes, boats and cars, and even the cash in people’s wallets.”
Although asset forfeiture laws date back to antiquity and to early customs law in America, its use increased during Prohibition and subsequently, beginning in 1970, when Congress enacted legislation to seize property of mafia organizations. The use of these laws has become increasingly popular and, as current statistics reveal, they have become a major source of funding for law enforcement.
Perhaps the most egregious aspect of asset forfeiture laws is the fact that they are enforced largely under the radar of public awareness. We rarely see or hear anything about them in the media. The biggest problem is the perverse nature of the incentive that has been created for law enforcement to confiscate private property, sell it and distribute the proceeds to their own agencies.
Nice work if you can get it. That is, taking and selling the property of others and putting the proceeds in your own pocket (budget).
I have never seen or been able to find any details about the application of asset forfeiture monies to government budgets, i.e., city, county, state or federal. How are these funds used?
If the various government entities are budgeting the cost of operating law enforcement agencies adequately, asset forfeiture should be treated as cost recovery, not as a source of extra money they can spend as they wish with little or no accountability.
— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who as lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog, Opinionfest.com.
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» on 01.30.12 @ 03:31 PM
Sherline is trying to balance two conflicting priorities from common law.
First, the penalty should be proportionate to the crime.
Second, people should not be able to keep, enjoy, protect, tools they use for illegal activities or profits.
Interestingly for a conservative, law ‘n order Republican, Sherline doesn’t spend
much time on the concept that there would be no forfeiture hearings if people
were not engaged in illegal activity.
The range of penalties derives from laws openly debated and publicly adopted.
Judges and courts try to balance these competing interests every day.
Where you live has a lot to do with how much latitude the bench has, or how stiff penalties are in forfeitures, and what kinds of assets may be exempt.
Since the entire Ca. criminal justice system, and their county arms, are in
the same dire financial straits as every other part of the economy after 5 years of Greenspan-Rove-Cheney-Bush super-recession, the idea of using miscreants
holdings to cover basic criminal justice costs is not as outrageous as Sherline
thinks.
It’s just one more “user fee”.
Those who create costs and overhead in the courts or the jails should pay as much as possible to help the public recoup its costs.
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