By Phillip Smith
You think about criminals, but maybe you should be thinking about the police. Law enforcement use of asset forfeiture laws to seize property—often without a criminal conviction or even an arrest—has gone through the roof in recent years, and now the cops are giving the criminals a run for their money—and winning.
According to a new report on asset forfeiture from the Institute for Justice, police seized $4.5 billion in cash and property through civil forfeiture last year. That exceeds the $3.9 billion worth of property stolen in burglaries during the same period. The valuation of burglary proceeds is from the FBI’s annual Uniform Crime Report.
Now, not every dollar seized by police is “stolen.” Some of it is seized legitimately from real criminals who should pay for the damage their crimes cause. But in too many cases, property is seized from people who have not been convicted of anything, like Charles Clarke.
Clarke, a 24-year-old college student, was relieved of $11,000 in cash by federal agents at the Cincinnati/Northern Kentucky International Airport after a ticket agent reportedly told them he smelled like marijuana. They stopped and searched him at the airport, found no drugs or other banned items, and never charged him with a crime, but they took his money.
Clarke says the cash was money he had saved over five years for college tuition. A federal judge this month said he was inclined to believe Clarke and has ordered the feds to actually show he made the money from drug dealing, as they claimed.
Clarke may get his money back, but it is an uphill battle. Unlike criminal law, where prosecutors must prove the guilt of the defendant, under civil asset forfeiture law, the burden of proof falls on the person from whom the money or property was seized. The property owner must prove that the property was not the proceeds of crime. And he must pay attorneys to fight for him. And he may not win.
With police racking up billions in seizures each year, law enforcement itself begins to take on the appearance of a criminal enterprise. It’s an enterprise with an ever-expanding appetite. According to Armstrong Economics, federal prosecutors seized an estimated $12.6 billion between 1989 and 2010, and the trend is upward. Federal asset forfeiture proceeds hovered at just under a billion dollars a year until 2007, doubled to two billion by 2009, and doubled again to over four billion in both 2013 and 2014.
Abuses of civil asset forfeiture have struck a chord with the public, and states are now beginning to pass laws banning or severely restricting civil asset forfeiture. Both New Mexico and Michigan did this year, and so did Wyoming, but that law fell victim to a governor’s veto.
Likewise, the issue is again gaining attention in Congress, which passed minor asset forfeiture reforms after a similar outcry 15 years ago. There are at least two bills going after civil asset forfeiture in this Congress, including one from Sen. Rand Paul (R-KY) and a bipartisan bill that would bar the use of civil asset forfeiture funds by the DEA to eradicate marijuana.
But until federal legislation actually passes, it’s still open season on the citizenry.