Wednesday 27 January 2010

Asset forfeiture

Radley Balko shows what's wrong with the American civil asset forfeiture regime in a feature piece at Reason:
Police gradually came to view asset forfeiture as not just a way to minimize drug profits, or even to fill their own coffers, but as a tool to enforce maximum compliance on non-criminals. In one highly publicized example from the 1990s, Jason Brice nearly lost the motel he had bought and renovated in a high-crime area of Houston. At the request of local authorities, Brice hired private security, allowed police to patrol his property (at some cost to his business), and spent tens of thousands of dollars in other measures to prevent drug activity on the premises. But when local police asked Brice to raise his rates to deter criminals, he refused, saying it would put him out of business. Stepped up police harassment of his customers caused Brice to eventually terminate the agreement that had allowed them latitude on his property. In less than a month, local and federal officials tried to seize Brice’s motel on the grounds that he was aware of drug dealing taking place there. Brice eventually won, but only after an expensive, drawn-out legal battle.

By the late 1990s, stories such as Brice’s finally moved Congress to act. After a series of emotional hearings in 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA), authored by Rep. Henry Hyde (R-Ill.). The bill raised the federal government’s burden of proof in forfeiture cases from probable cause to a preponderance of the evidence, the same standard as in other civil cases. It barred the government from using hearsay and allowed owners who won forfeiture challenges to obtain reimbursement for legal expenses.

The bill wasn’t perfect. Seizures made by customs agents, as opposed to the DEA or FBI, would still be governed by the old rules. Hyde (who died in 2007) wanted an even heavier burden of proof for the government, the “beyond a reasonable doubt” standard used in criminal cases. That didn’t pass. Under CAFRA, the federal government could still take your property without proving beyond a reasonable doubt that any crime was committed, much less that you yourself had committed one. But at least the reforms made the process a bit more difficult.

Problem was, the 1984 law had already spawned dozens of imitators on the state level, and CAFRA applied only to the feds. Forfeiture had been sending money to police departments and prosecutors’ offices for 16 years, so even in the few states that passed laws to make the process more fair, officials found ways around them. Once the authorities have a license to steal, it turns out to be very difficult to revoke.
The effects on police allocation of time and resources are predictable:
In addition to raising questions of fairness, forfeiture has warped the priorities of law enforcement agencies. In 2008 the Bureau of Alcohol, Tobacco, Firearms, and Explosives asked for bids from private contractors on 2,000 Leatherman pocket knives for its agents, to be inscribed with the phrase “Always Think Forfeiture,” a play on the agency’s traditional “ATF” initials. The agency rescinded the order after it was reported in the Idaho Statesman, but critics said it betrayed the ethic of an organization more interested in taking people’s property than in fighting crime.

Some police agencies come to view forfeiture not just as an occasional windfall for buying guns, police cars, or better equipment, but as a source of funding for basic operations. This is especially true with multijurisdictional drug task forces, some of which have become financially independent of the states, counties, and cities in which they operate, thanks to forfeiture and federal anti-drug grants.

In a 2001 study published in the Journal of Criminal Justice, the University of Texas at Dallas criminologist John Worral surveyed 1,400 police departments around the country on their use of forfeiture and the way they incorporated seized assets into their budgets. Worral, who describes himself as agnostic on the issue, concluded that “a substantial proportion of law enforcement agencies are dependent on civil asset forfeiture” and that “forfeiture is coming to be viewed not only as a budgetary supplement, but as a necessary source of income.” Almost half of surveyed police departments with more than 100 law enforcement personnel said forfeiture proceeds were “necessary as a budget supplement” for department operations.


Tiny Tenaha, Texas, population 1,046, made national news in 2008 after a series of reports alleged that the town’s police force was targeting black and Latino motorists along Highway 84, a busy regional artery that connects Houston to Louisiana’s casinos, ensuring a reliable harvest of cash-heavy motorists. The Chicago Tribune reported that in just the three years between 2006 and 2008, Tenaha police stopped 140 drivers and asked them to sign waivers agreeing to hand over their cash, cars, jewelry, and other property to avoid arrest and prosecution on drug charges. If the drivers agreed, police took their property and waved them down the highway. If they refused, even innocent motorists faced months of legal hassles and thousands of dollars in attorney fees, usually amounting to far more than the value of the amount seized. One local attorney found court records of 200 cases in which Tenaha police had seized assets from drivers; only 50 were ever criminally charged.

National Public Radio reported in 2008 that in Kingsville, Texas, a town of 25,000, “Police officers drive high-performance Dodge Chargers and use $40,000 digital ticket writers. They’ll soon carry military-style assault rifles, and the SWAT team recently acquired sniper rifles.” All this equipment was funded with proceeds from highway forfeitures.
Think it can't happen here in New Zealand? Think again. The Greens (especially the admirable Nandor Tanczos) and Maori were about the only outspoken Parliamentary opponents of civil asset forfeiture legislation introduced by the prior Labour government and passed by the current National government; ACT favoured it.

The NZ legislation isn't as bad as the American version, but give it time.

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