The War on Drugs, Civil Forfeiture, and Highway Robbery

Sarah Stillman has provided a revealing—and startling—look at the process known as "civil forfeiture." Her article appeared in The New Yorker under the title Taken. Her lede explains why this is such an important topic.

"Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes."

While we are told that the Constitution protects us from "unreasonable searches and seizures," and that our property cannot be taken from us without "due process," the reality is much less reassuring.

Beginning in the 1970s, law enforcement officials began trying new methods to counter organized crime associated with the illegal drug trade. The concern was that those most responsible were those most difficult to bring to justice through the normal criminal justice paths. The intent was to punish by confiscation of property those who could not be punished by criminal statute. The definition of property associated with criminal activity was quite broad. One should recognize that this is moving law enforcement into murky areas.

"Forfeiture in its modern form began with federal statutes enacted in the nineteen-seventies and aimed not at waitresses and janitors but at organized-crime bosses and drug lords. Law-enforcement officers were empowered to seize money and goods tied to the production of illegal drugs. Later amendments allowed the seizure of anything thought to have been purchased with tainted funds, whether or not it was connected to the commission of a crime."

Such forfeitures were comparatively rare until the passage of the Comprehensive Crime Control Act in 1984 and the establishment of a program called Equitable Sharing. The goal seemed to be the enhancement of law enforcement activities without having to pay for the increase. The federal government was providing local law enforcement agencies a way to earn money by arresting people and confiscating their property. The more people arrested, the more money earned.

"It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws."

"Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.)"

Drug arrests and property forfeitures soared as police officers, law enforcement agencies, and even communities began to depend on this source of income. Not surprisingly, there were abuses of the privilege.

"’Unfortunately, I think I can say that our civil-asset-forfeiture laws are being used in terribly unjust ways,’ Henry Hyde, the Republican chairman of the House Judiciary Committee, declared in 1997, ‘and are depriving innocent citizens of their property with nothing that can be called due process’."

To address this issue, Congress passed the Civil Asset Reform Act in 2000 in an attempt to limit the extent of forfeiture actions and to provide more legal rights for those whose property had been taken.

"....requiring that federal prosecutors prove "a substantial connection between the property and the offense," and allowing people who can prove themselves "innocent owners" to keep their property."

The way the process works, the government sues the property itself, not the owner of the property. If a court approves the action, then the owner has to sue to overturn the ruling. Not many people can afford the cost of pursuing justice in such an instance.

The courts have given law enforcers broad latitude in determining what property is liable to forfeiture. In 2006, in United States v. $127,000, an appeals court overruled a lower court and ruled that a Latino driver who was stopped with the indicated sum of money in his car provided suspicious enough circumstances that the police could confiscate the funds as drug-related money. No evidence of a crime existed, and none was needed.

The laws, both state and federal, are vague and can be interpreted as needed. The financial incentives continue to exist, and the need for revenue from forfeiture has become more acute as the economic situation has limited other sources of revenue.

"But civil-forfeiture statutes continued to proliferate, and at the state and local level controls have often been lax. Many states, facing fiscal crises, have expanded the reach of their forfeiture statutes, and made it easier for law enforcement to use the revenue however they see fit. In some Texas counties, nearly forty per cent of police budgets comes from forfeiture. (Only one state, North Carolina, bans the practice, requiring a criminal conviction before a person’s property can be seized.)"

Stillman provides several examples of what civil forfeiture has meant in practice. Two of these will serve to illustrate the seriousness of the issue.

Jennifer Boatright and Ron Henderson and two children, were driving from Houston to the town of Linden. They planned on buying a used car in Linden and were carrying cash to cover the purchase price. They passed through the town of Tenaha on the way and were pulled over by a police car. They were told that they had been stopped because they had been driving in the left lane for more than a mile without passing. The police then asked if they could search the car for drugs. This is what ensued.

"The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, ‘a known point for distribution of illegal narcotics,’ to Linden, ‘a known place to receive illegal narcotics.’ The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car...."

After waiting an hour the county district attorney, Lynda K. Russell, showed up and made them an offer they could not refuse.

"They could face felony charges for "money laundering" and "child endangerment," in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road."

They were told that the police thought they were criminals, but if money was paid, they could be set free. Was there ever a more obvious example of a shakedown?

Lest one think that this is a possibility only in remote rural areas of Texas, consider the case of Mary and Leon Adams a black couple in their eighties living in their home in West Philadelphia. Also living with them was an adult son, Leon Jr.

Leon Jr. was said to be involved as the seller in a few $20 marijuana transactions with a police informant. The police sent a SWAT team to break down the door (without warning) and arrest the son. A month later:

"....Mary and Leon Adams were finishing breakfast when several vans filled with heavily armed police pulled up to their red brick home. An officer announced, ‘We’ll give you ten minutes to get your things and vacate the property.’ The men surrounding their home had been authorized to enter, seize, and seal the premises, without any prior notice."

There was this justification for the abrupt action.

"....the state was now seeking to take the Adamses’ home and to sell it at a biannual city auction, with the proceeds split between the district attorney’s office and the police department. All of this could occur even if Leon, Jr., was acquitted in criminal court; in fact, the process could be completed even before he stood trial."

Stillman discovered that about 100 properties in the city are seized and auctioned off each year.

The Adamses did receive a bit of a reprieve.

"....when an officer observed Leon’s frail condition, he told them that they could stay in the house while the forfeiture proceedings advanced. This gave them some time to figure out how to fight."

"’We had no money,’ Mary told me, so they couldn’t hire a lawyer. But they learned of a free "Civil Practice" clinic at the University of Pennsylvania Law School, run by Louis Rulli, where students help indigent homeowners challenge civil-forfeiture claims."

Conversations between Stillman and Rulli included the contention that home forfeitures were common and they were mostly imposed on defenseless minorities.

"The public records I reviewed support Rulli’s assertion that homes in Philadelphia are routinely seized for unproved minor drug crimes, often involving children or grandchildren who don’t own the home. ‘For real-estate forfeitures, it’s overwhelmingly African-Americans and Hispanics,’ Rulli told me. ‘It has a very disparate race and class impact’."

To further make his point, Riulli summoned this counterexample.

"He went on to talk about Andy Reid, the former coach of the Philadelphia Eagles, whose two sons were convicted of drug crimes in 2007 while living at the family’s suburban mansion in Villanova. ‘Do you know what the headline read? It said, "The Home Was an "Emporium of Drugs." An emporium of drugs!’ The phrase, Rulli explained, came directly from a local judge. ‘And here’s the question: Do you think they seized it?’"

The Adamses are still in limbo waiting for their case to be resolved, but they at least have legal representation.

Boatright and Henderson fought back, and with numerous other victims became part of a successful class action suit. They received no reimbursement for their loss, but did have the satisfaction of seeing Tenaha ordered to stop robbing drivers as they passed through. The Texas state legislature was sufficiently embarrassed that they placed some minor restrictions on what law enforcement agencies could do with seized property.

Stillman finds that a few significant patterns have emerged from her research. She has concluded that it is the financial incentives that drive the abuse of the system. In states where there is no local control over seized items there is little abuse evident. Where there is financial gain to be had, the temptation is too great to resist.

Another conclusion is that it is not wealthy and powerful criminals that have the most to fear. Rather, it is minorities and others who appear too poor or too frightened to cause any trouble.

"Yet only a small portion of state and local forfeiture cases target powerful entities. ‘There’s this myth that they’re cracking down on drug cartels and kingpins,’ Lee McGrath, of the Institute for Justice, who recently co-wrote a paper on Georgia’s aggressive use of forfeiture, says. ‘In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.’ In 2011, he reports, fifty-eight local, county, and statewide police forces in Georgia brought in $2.76 million in forfeitures; more than half the items taken were worth less than six hundred and fifty dollars. With minimal oversight, police can then spend nearly all those proceeds, often without reporting where the money has gone."

The focus here has been on drug-related incidents, but forfeiture laws are much broader than that.

"Hundreds of state and federal laws authorize forfeiture for cockfighting, drag racing, basement gambling, endangered-fish poaching, securities fraud, and countless other misdeeds."

And remember—one needn’t be guilty—only worthy of "suspicion," or associated with a person worthy of "suspicion."