By Waseem Salahi, Jessica Brand, and Callie Heller
Originally published on InJusticeToday.com
In January 2016 in San Diego, a SWAT team entered the offices of Med-West, a licensed cannabis manufacturer and distributer. It seized over $300,000 in cash and products valued at hundreds of thousands of dollars. In addition, law enforcement and the District Attorney seized $100,000 from owner James Slatic’s personal bank accounts, money that also belonged to his wife and his kids.
In May of 2017, with charges still not filed, a judge ordered the D.A. to pay Slatic back the money from his personal account with interest. But the office kept the assets from the business, and soon after filed charges against Slatic. [Jessica Pishko / Slate] In December of this year–nearly two years later–the government returned all but $35,000 of the money. After all that, Mr. Slatic pleaded guilty to two marijuana–related misdemeanors. [Greg McDonald / San Diego Union Tribune]
In August 2012, Mandrel Stuart, a 35-year-old black man, was driving in Fairfax, Virginia, with his girlfriend when police pulled them over. Officers stopped them because the car’s windows were tinted and a video was playing in Stuart’s sightline. During the stop, a K-9 dog alerted the officer to drugs in the car. The police detained Stuart and his girlfriend for two hours, but only found 0.01 grams of marijuana and $17,550 in cash. Stuart explained that he was planning to use the money that night to buy supplies for his restaurant. Still, police handcuffed Stuart and took him to a nearby station. They never charged him with a crime and ultimately let him go. But they kept the $17,550.
In criminal court, a person is innocent until proven guilty. But under civil forfeiture laws, the state placed the burden of proof completely on Stuart to prove that his money had no connection to criminal activity. To get his money back, Stuart had to hire an attorney, wait 14 months, and win a jury trial. By that point, it was too late. He couldn’t keep up with the bills for his restaurant, and he ended up losing it in the process. [Washington Post / Robert O’Harrow Jr., et al.]
Since police pulled over Stuart in 2012, almost half of the nation’s states have reformed their asset forfeiture laws to enhance property rights and limit civil forfeitures where the government has not charged the person with or convicted him of a crime. But while some states have eliminated civil forfeiture entirely, Trump administration is trying to bring the practice back in full force.
In this explainer, we unpackage how civil asset forfeiture works, and the measures law enforcement, prosecutors, and legislators are taking to stop in some places and expand it in others.
What Is Civil Asset Forfeiture?
Each year in America, law enforcement agencies–prosecutors, police, and other law enforcement branches–seize hundreds of millions of dollars in cash, cars, real estate and other property from people, even if they have never been convicted of or even charged with a crime. Between 2001 and 2014, law enforcement seized cash and goods worth $29 billion through civil forfeiture. [Institute for Justice]
- Under civil forfeiture laws, law enforcement can seize money or property they suspect is connected to criminal activity. To get their property back, owners must navigate a complex, time-consuming, and expensive legal process. Because police officers and prosecutors can keep the proceeds, asset forfeiture laws create perverse incentives to seize property, even when there is little or no evidence that the property was actually connected to any criminal activity. [Institute for Justice]
- Asset forfeiture greatly expanded after the 9/11 terrorist attacks. The government spent millions of dollars training police on conducting “highway interdiction” stops and encouraged them to look for drugs and other contraband. Since 9/11, state law enforcement has made 61,998 cash seizures without search warrants or indictments through a federal program known as Equitable Sharing, [Washington Post / Michael Sallah, et al.], which was established in 1984 to help state law enforcement “skirt state restrictions on the use of seized funds.” [The New Yorker / Sarah Stillman] The cash seizures totaled to more than $2.5 billion. State and local authorities kept more than $1.7 billion, while federal agencies received $800 million. Notably, half of the seizures were below $8,800. [Washington Post / Michael Sallah, et al.
- Although forfeiture was originally established to cripple large-scale criminal enterprises, many prosecutors and police departments use these seizures to increase their budgets. For example, the Washington Post found that, since 2008, 298 police departments and 210 drug task forces have seized the equivalent of 20 percent or more of their annual budgets. [Washington Post / Michael Sallah, et al.] See also Institute for Justice’s comprehensive report on civil forfeiture practices authored by Dick M. Carpenter II, et al.
- An examination by the Washington Post found that law enforcement took more property from American citizens than burglars did in 2014. [Washington Post / Christopher Ingraham]
- And law enforcement does not seem to be targeting just the big fish. In California in 2013, the average seizure was $5,145. In Cook County, Illinois, the average value of seized assets between 2012–2017 was $1,049. In Washington DC between 2009–2014, it was $141. [Jason Snead / OC Register]
- There is serious abuse in asset forfeiture. In 80 percent of civil forfeiture cases, property is seized and forfeited even when the DA never files criminal charges against the property owner. [Drug Policy Alliance]
- Between 2012 and 2017, prosecutors in the Suffolk County District Attorney’s Office (NY) spent $3.25 million in seized assets to give its prosecutors bonuses. [C.J. Ciaramella / Reason]
- During a five-year span in Philadelphia, the D.A.’s office spent $30,000 on submachine guns with military-grade laser sights, $16,000 on website development, and had tens of thousands in unidentified cash withdrawals. The office also loaned out seized cars to office employees. [Max Marin & Ryan Briggs / Philadelphia Weekly]
- Asset forfeitures disproportionately impact poor communities and people of color. For example, in Nevada, two-thirds of seizures occurred in 2016 in zip codes with higher-than-average rates of poverty and large minority populations. [Reason / C.J. Ciaramella]. In 400 federal cases examined by the Washington Post where people challenged seizures and received money back, the majority were people of color. [Washington Post / Michael Sallah, et al.]
A Growing And Bipartisan Consensus Believes That Asset Forfeiture Is Wrong
- According to a poll taken by the Cato Institute, 84 percent of Americans do not believe that property should be taken from someone who has not been convicted of a crime. [Cato Institute Poll] A February of 2017 poll by the group Right on Crime showed that 88 percent of people believe the government should not keep seized assets without a conviction. [Right on Crime]
- A broad coalition of civil rights organizations, including the American Civil Liberties Union, Institute for Justice, and Concerned Veterans for America, sent a letter in July 2017 to members of Congress urging them to reform civil forfeiture laws. [American Civil Liberties Union Letter]
- In November 2017, the Southern Poverty Law Center and Alabama Appleseed Center for Law and Justice held a forum for 11 organizations to discuss the potential for law enforcement abuse, the need for transparency, and the policy’s roots in the failed drug war. The forum included such diverse participants as the Charles Koch Institute and Institute for Justice. [Southern Poverty Law Center]
Legal Challenges Are Eroding The Practice
Property owners are suing cities with questionable asset forfeiture policies, asserting that officials violated their due process rights by seizing their assets.
- In September 2014, Washington, D.C., paid $855,000 to settle a class-action lawsuit brought by the Public Defender Service on behalf of property owners whose cars had been seized without due process. [Forbes / Nick Sabilla] See also Class Action Complaint describing the allegations.
- In 2016, the Bronx Defenders, a nonprofit legal services organization, brought a class-action lawsuit against the City of New York over its civil forfeiture policy. [Class Action Amended Complaint / Bronx Defenders] One month later, the Bronx district attorney agreed to create a Property Release Unit, which is staffed by an assistant district attorney who is available to speak with property release claimants and provide them with a prompt response if they make a demand and have not heard back within fifteen days. [Letter / City of New York] See also Sarah Ryley’s article describing the settlement in the NY Daily News.
- In Arizona in 2017, the ACLU and a private law firm filed a law suit challenging the constitutionality of the state’s asset forfeiture laws. The named plaintiff, Rhonda Cox, loaned her car to her son one night. Police stopped him and found some allegedly stolen goods on the car, seized the vehicle, and then sold it, even though it belonged to Cox, who had nothing to do with the suspected offense. The suit asks the judge to issue a declarative judgment holding the state’s asset forfeiture laws unconstitutional and to return her car. [Ellen Brait / The Guardian]
- In Wyoming, police pulled over Phil Parhamovich for failure to fasten his seat belt. A drug sniffing dog alerted, but during the subsequent search, police found no drugs. They did find $91,800 in cash, which the traveling musician carried with him because he feared someone would rob his Madison, Wisconsin apartment while he was on tour. When the police falsely told Parhamovich that he broke the law by carrying that much money, Parhamovich lied, said the money belonged to a friend, and, succumbing to police pressure, signed a waiver “giving” the money to the Department of Corrections. His lawyers argued that this amounted to highway robbery, and at a hearing this December, the judge ordered law enforcement to return the money. [Jacob Sullum / Reason]
Some State And Federal Legislators Are Taking Civil Forfeiture Reform Seriously And Are Working To Limit It.
Since 2014, 24 states and Washington, D.C., have tightened their forfeiture laws. Further legislative efforts are currently pending in at least six other states. Fourteen states now require a criminal conviction for most or all forfeiture cases. Three states — North Carolina, New Mexico, and Nebraska — have abolished civil forfeiture entirely. [Institute for Justice]
- In 2016, California Governor Jerry Brown signed a reform bill that requires a criminal conviction before law enforcement can permanently take assets worth less than $40,000 from someone. [LA Times / Liam Dillon]
- In 2017, Pennsylvania Governor Tom Wolf signed into law a bill requiring police and prosecutors to stop seizing homes without warning. They now have to prove to a court that there is an emergency requiring immediate action and that there are no less drastic ways to protect the public. The bill also raises Pennsylvania’s standard of proof from preponderance of the evidence, and shifts the burden of proof from property owners to the government. In addition, the bill includes new transparency requirements and new protections for property owners acquitted of a crime. [Milad Emam /Philly.com]
- Congress is considering legislation that would, among other things, create a higher burden of proof for forfeitures (from “preponderance of the evidence” to “clear and convincing evidence”), provide for appointment of counsel for indigent property owners, provide for recovery of attorney’s fees if the property owner wins, require annual auditing, and establish a public database. [DUE PROCESS Act of 2017]
- In December of 2017, a Republican State Senator in Georgia introduced a bill that would require law enforcement to obtain a criminal conviction in order to keep seized assets. It is supported by the Vice President of Legislated Affairs at the conservative group FreedomWorks, who states that the bill “restores due process and protects innocent individuals whose property may be seized by requiring a criminal conviction.” [C.J. Ciaramella / Reason]
Some Prosecutors And Law Enforcement Officials Are Also Pushing For Reform.
- In November of 2017, the city of Philadelphia elected progressive reformer Larry Krasner as the new D.A. Krasner has lambasted the city’s use of asset forfeiture. “They were spending it on military-style weaponry in a department that should be less militarized.” He promised to give any proceeds to the city’s general fund to prevent abuse. [Max Marin & Ryan Briggs / Philadelphia Weekly] He also stated that “[Civil asset forfeiture] is just one more way the criminal justice system steps on the necks of the poor and criminalizes poverty.” [Brentin Mock / CityLab]
- Cook County State’s Attorney Kim Foxx publicly supported reform legislation in Illinois. [Chicago Tribune / Kim Foxx] See also Hilary Gowins’ article describing reforms underway in Illinois Policy.
- Former Washington, D.C., police chief Cathy Lanier supported the goals of a major reform bill that slashed financial incentives for law enforcement to take property by ending the Equitable Sharing partnership with the federal government. [Washington Post/ Robert O’Harrow, Jr.]
Unfortunately, While Law Enforcement, Prosecutors, And Elected Officials Can Make Change, Many Continue Abusing The System.
- Most famously, Attorney General Sessions reversed course on Obama-era asset forfeiture policies and has promised to increase asset forfeiture. It permits “federal adoption,” which allows state agencies to work with and receive assets from federal authorities, a work around in places with restrictive forfeiture rules. The state agencies give seizures to federal agencies who “adopt” them for prosecution and then return eighty percent to the state agency after. [Sarah Stillman / The New Yorker] Responding to criticisms over potential abuses, Sessions has ordered Deputy Attorney General Rod J. Rosenstein to hire a director to oversee the unit and review the Department of Justice’s civil asset forfeiture as a watchdog, but it will not be an independent agency. [Sari Horwitz/Washington Post].
- In California, aggressive law enforcement opposition initially stymied passage of a reform bill in 2015. The California District Attorneys Association sent a letter to the state legislature stating that “[o]ur 58 elected district attorneys remain unanimously opposed to [the bill].” [CDAA Letter] However, the following year, the bill won nearly unanimous approval in the state senate with a 38–1 vote. [Press Release, Drug Policy Alliance]
- In Arizona, prosecutors and law enforcement strongly opposed a civil forfeiture reform bill, even though it received nearly unanimous support in the state legislature. [U.S. News & World Report / Clarice Silber] In April 2017, the governor signed the bill. [Press Release, Arizona Office of the Governor] See also Letters from prosecutors and police officers opposing the measure.
- District attorneys in Texas, which has one of the worst civil forfeiture records in the country, strongly opposed bills introduced earlier this year aimed at reform. The bills would have required a conviction before property was seized, restricted what could be taken, and forced the state to prove that the seized property was related to a crime. Even though 88 percent of Texas voters don’t believe that law enforcement should be able to keep your property without a criminal conviction, prosecutors testified in front of legislative committees and wrote opinion editorials against reforms. In the end, none of the bills passed. [In Justice Today / Policing for Profit: Texas] See also Carimah Townes, writing for Slate and the Fair Punishment Project, describing prosecutors’ opposition to reforms.
- Before New Mexico banned civil forfeiture outright, a leaked recording of a prosecutor at a 2014 conference captured him detailing a plan to take the homes of people caught with tiny amounts of marijuana, even in states where its use is legal. The prosecutor stated: “I got to thinking this morning, in the paper that everybody is running around liberalizing marijuana or thinking about it. Putting it on the ballot. Taking it off the ballot. And I thought, boy, what a trap. You liberalize marijuana so somebody can sell it, they sell the marijuana out of the house, then you seize the house, which is like 10 bucks of marijuana and you [the police] get a $300,000 house. What a deal. That’s really exciting. They get what they want, and you get what you want. And the title of that article in the [Wall Street] Journal was ‘What’s Yours Is Theirs.’ I want to turn it around as ‘What’s Theirs is Yours.’” [BuzzFeed / Nick Sibilla]
- In Texas, the Montgomery County district attorney used forfeiture funds to buy a margarita machine. [Houston Chronicle / Renee C. Lee]
- In Washington and Nowata counties in Oklahoma, the district attorney’s office used $5,000 in forfeited funds to make payments on an assistant DA’s student loans, according to a 2014 state audit report. [Oklahoma Watch / Clifton Adcock] A 2009 audit also shows that a district attorney in Beaver County, Oklahoma, lived rent-free in a house obtained in a 2004 forfeiture, even though a judge had ordered the house sold at an auction. [Oklahoma State Audit Report]
- According to a court filing by the New Jersey chapter of the ACLU, the Hudson County, New Jersey prosecutor’s office sued a man to keep his $171 and used legal maneuvers to force him to pay a $175 filing fee to defend against the forfeiture. That way, even if he won his suit, he would lose $4. [American Civil Liberties Union]
- In Covington County, Alabama, Wayne Bonam succumbed to his weakened heart a year after drug task force agents conducted a raid on his house, complete with grenades. Though the agents said they found drugs and nearly $20,000 in cash in the house, prosecutors never proved the allegations in court. But they continued their seizure proceedings after his death, wresting it from Bonam’s surviving family members. The auction sale plus seized cash netted the drug task force $74,612, the district attorney’s office $18,653, and the court overseeing the proceeding $1,017. [Southern Poverty Law Center].
- Federal agencies, like prosecutors, also wield asset seizure as a weapon against the people. It took two years for Customs and Border Protection to return Gerardo Serrano’s pick-up truck, which they seized for containing “munitions of war” because of the 5 stray bullets Serrano mistakenly left in the center console — He was not even carrying a gun, (although he did have a concealed weapons permit). Though he challenged the seizure immediately (which required paying a $4,000 bond), the government ignored him until the Institute for Justice took on his case. [Christopher Ingram / Washington Post].
- ICE’s Homeland Security Investigations department relies heavily on civil asset seizure to fund its operations, a leaked handbook shows. Each year, Homeland Security seizes millions in assets during the course of smuggling, trafficking and other transnational criminal investigations. The money is then used to fund forfeiture investigations and is also awarded to state and local law enforcement agents participating in the raids. Demonstrating the high priority the agency places on this program, the 71-page handbook instructs agents on how to justify seizures and the nitty-gritty of how to determine whether property is valuable enough to warrant seizure. [Ryan Devereaux & Spencer Woodman/The Intercept]