Tuesday, February 10, 2009

Take the profit motive out of asset forfeiture

With the Texas Senate Criminal Justice Committee poised to propose new restrictions on asset forfeiture income by police and prosecutors, the timing of Sunday's San Antonio Express News story about what amounts to roadside piracy by police in the tiny East Texas town of Tenaha couldn't have come at a more appropriate time time ("Property seizures seen as piracy," Feb. 8). Reported Lisa Sandberg:

A two-decade-old state law that grants authorities the power to seize property used in crimes is wielded by some agencies against people who never are charged with — much less convicted of — criminal activity.

Law enforcement authorities in this East Texas town of 1,000 people seized property from at least 140 motorists between 2006 and 2008, and, to date, filed criminal charges against fewer than half, according to a San Antonio Express-News review of court documents.

Virtually anything of value was up for grabs: cash, cell phones, personal jewelry, a pair of sneakers, and often, the very car that was being driven through town. Some affidavits filed by officers relied on the presence of seemingly innocuous property as the only evidence that a crime had occurred.

Local officials were pretty crass in describing their motives for such behavior:

Tenaha Mayor George Bowers, 80, defended the seizures, saying they allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station. “It’s always helpful to have any kind of income to expand your police force,” Bowers said.

Well sure. If you robbed a bank, I'm sure that income would be "helpful," too. But we're talking about cops, not thieves. Or at least, that's supposed to be the case. Apparently local officials were not only butting up against the lines of propriety in Tenaha, they appear to have overtly crossed it:

In Shelby County, the district attorney made legal agreements with some individuals that her office would not file criminal charges so long as the property owner waived all rights to the valuables.

“In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County District Attorney’s Office agrees to reject charges of money laundering pending at this time,” read one waiver, dated April 10, 2007.

The property owners named in the waiver had just signed over $7,342 in cash, their 1994 Chevrolet Suburban, a cell phone, a BlackBerry and a stone necklace.

The law, forbids a peace officer at the time of seizure to “request, require or in any manner induce any person . . . to execute a document purporting to waive the person’s interest in or rights to the property.”

Mark Bennett at Defending People points out that these practices violate many existing laws:

According to the lawsuit (PDF of complaint) filed in U.S. District Court, officers would stop non-white motorists for no legal reason, order them out of their cars, search their cars, call out dogs to search the cars, find nothing, interrogate the motorists, ask them if they had any money, seize the money, arrest them for “money laundering”, and then threaten to hold them prisoner and prosecute them for money laundering unless they would agree to forfeit the money.

Let’s try to count the felonies being committed here. Theft, robbery, aggravated robbery, extortion, bribery, kidnapping and aggravated kidnapping — I count seven and I’m sure I’m missing a few.

But do you think anyone in Tenaha will be prosecuted for violating the law? Will the DA be disciplined by the state bar? Call me a cynic, but I'd bet dollars to donuts that will never happen. After all, what DA would ever prosecute those cases when they're getting a cut of the take? These folks are smart enough not to kill a goose laying golden eggs.

Similarly, the Texas state bar rarely disciplines prosecutors for misconduct except in the most extraordinary, high-profile circumstances. There's just no recourse for enforcement in these cases when all the legal players are in on the scam.

Then there's the question of how the money is spent. A story in The Economist last summer ("The Sheriff's Stash," July 10, 2008) cited examples of abuse, including "A district attorney in west Texas [who] took his whole staff to Hawaii for a training seminar. Another spent thousands of dollars on commercials for his re-election campaign."

Examples like in Tenaha and those cited in the Economist are priming the pump for what could be a flood of changes to asset forfeiture laws, reported the Express-News:

Sen. John Whitmire, D-Houston, chair of the Senate Criminal Justice Committee, said the state’s asset forfeiture law is being abused by enough jurisdictions across the state that he wants to rewrite major sections of it this year.

“The idea that people lose their property but are never charged and never get it back, that’s theft as far as I’m concerned,” he said.

Damn straight. Preach it, senator!

I can't find any legislation filed on this subject yet, but the Legislative Council is inexplicably backed up on its bill drafting duties, so I'd be willing to bet some are coming.

In light of this story, I took another look this afternoon at the Senate Criminal Justice Committee's interim report (pdf), the sixth charge of which addressed asset forfeiture policy. The Tenaha story seems to corroborate the committee's assertion that "What was once a crime fighting and law enforcement tool has since become a profit-making, personal account for some law enforcement officials" (p. 65).

The committee faulted state law for providing little oversight and no regulatory teeth to enforce the few rules that exist. They also said that asset forfeiture income had contributed to the "under-funding of these offices" which forced them to "use Chapter 59 [forfeiture] funds as a necessity to cover expenses. ... without placing pressure on local officials to provide adequate funding." That appears to be exactly what's going on in Tenaha.

In fact, upon reexamining the Criminal Justice Committee report, I think they probably didn't go far enough in their recommendations: Maybe it's time to go back to Texas' standard prior to 1989 when a criminal conviction was required before assets could be seized?

For that matter, why not remove the profit motive from asset forfeiture altogether instead of just requiring more documentation? That's already done in other states. According to the Economist, "In Indiana, for example, extra money goes to a general school fund. In Texas, most of it stays with the sheriffs or district attorneys whose offices found it."

I'd like to see Texas follow Indiana's lead. Why not designate those funds for schools, for state crime labs, or some other purpose where the agencies doing the seizing don't have a profit motive in maximizing income? That'd put a stop to this kind of self-aggrandizement, whereas I'm not sure just requiring more documentation would really do the trick.


TxBluesMan said...

At the very least, forfeiture should be prohibited absent a conviction.

Michael said...

Damn it to hell, Scott! You talk about the Shelby County District Attorney getting away with extortion and highway robbery, without so much as a sanction from the State Bar, but you never mention HER NAME!!! Is there some reason you can't tell us that Linda K. Russell is the bar-card-carrying enabler of this gang of highway bandits?

Gritsforbreakfast said...

Good point, Michael. You know me, always covering the behind of bad DAs. ;)

Anonymous said...

Asset forfeiture is the mother of all drug evils. Change it and you'll see a change in the way all drug law enforcement does business.

Two things. Even if States do away with giving the proceeds to State and local agencies; the FEDS can adopt forfeitures. They give back 80% and FED adoption was the norm in the 90's until the States got their own. Watch out for that very popular alternative.

Second; even if you can't change it all together; change the percentages. For example; suggest that 20% be kept by law enforcement statewide and the rest go for treatment, education, etc. Politicians are always looking for a way not to piss off the police and recucing the amounts is not as unpopular as elimenation.

Finally, if states change asset forfeiture laws; states will send more officers to Federal task forces to feed from the federal cash farm. DEA, FBI, etc will deputize them and they get a percentage of everything the Task Force seizes.

HIDTA is the last option but it's funding is becoming obsolete.

Anonymous said...

To 6:45

Under state statute, awarded money does not go into the general fund where it can be controlled by city councils/county commissioners.

Is there something similar under federal guidelines? If there is no similar language, look for this to make a difference should local agencies decide to attempt to file their seizures with the feds.

Anonymous said...

To: 7:57

Under federal guidelines, 20% stays with the FEDs however the sharing has to go to say a police department; a state's attorney's office; etc but used for law enforcement purposes. A law enforcement purpose is the only requirement and I doubt that most states even know that departments, agencies, etc are storing this cash.

I don't see how State law can supercede this requirement but it allows Chiefs, heads of departments; DA's and other office heads to control it which is even worse. A drug law enforcement purpose can be exaggerated to pay for a two week interdiction school for 24 cops in lets say Las Vegas. HMMMMMMMMM.

The Drug Asset forfeiture fund at the federal level will one day be the Bernie Madoff of Law Enforcement. No one knows what's out there; how it's being spent; and some of it may be paying off home mortgages.

Someone on this blog will no doubt tout the strict requirements of getting it; using it; and accountability. Remember, the accountability rests with the U.S. Government; just like the SEC.

Anonymous said...

I take it there is no end of year reporting to the feds as to how the agency spent the money?

Anonymous said...

Here's an AWESOME idea. Take the forfeitures and invest in something truly worth while. Have the money gained go into 100% drug education and prevention. Guns and cars are easy.. Fight the 'war' on the level of educating the kids and young adults.

The sorriest thing we do with the drug money is use it finance another failed attempt at 'War on .." How about Peace for once.

Anonymous said...

Well just dont come up highway 287 north towards Amarillo,(Wilbarger,Hardeman,Childress counties) you'll find out just how easy and often the drug seizures occur.Nice new car-you fit the profile, out of state tags-you fit the profile, tinted windows-you fit the profile, nonwhite-you fit the profile,even white-you fit the profile! You will be happy to see the shiny new police cars and all that equipment your gonna help pay for. Infact I was stopped and before the deputy could tell me "a suspicious smell was coming from my car" the second unit with the drug dog was already pulling up. Sadly for these guys I refused to be searched and had the video camera running the entire time. Over an hour later of quoting the 4th amendment(look it up)and teaching deputy barney fife about probable cause my family was allowed to leave. But I was given a word of friendly advice "never bring my brown ass thru there again".I was followed by deputys thru the next two counties but not pulled over. This really happened in 2001 in Wilbarger county. I think back about this and oft times recall those wonderful lyrics "Fuck the police!".

Anonymous said...

I know one thing,you don't want to ask the folks in Randall County( Amarillo) Texas, where the seizure $ forfieture money goes or how it's being spent, not publically anyway. It makes all the big boy's real nervous, and they'll go to most any length's to make sure you don't bring it up again.

ASSET said...

Some serious measures to be taken in order to maintain law and order.

If everyone will be allowed to work his way then it will help no one.