Asset forfeiture funds may get more accountability, money diverted to drug courts

Why shouldn't money forfeited by drug dealers be used to finance drug courts and treatment programs? If a local DA misuses asset forfeiture funds, who can prosecute them? Have these monies simply become local political slush funds?

Those were some of the questions posed at a June 5 hearing of the Texas Senate Criminal Justice Committee (I was out of town that day and just got around to listening to the asset forfeiture discussion - the video archive is here.)

Committee Chairman John Whitmire of Houston first considered the need for an interim charge on asset forfeiture, he said, after receiving immense backlash from district attorneys in 2007 when he proposed taking 10% of forfeiture funds and using them to create drug courts.

Whitmire said his staff calculated that local governments currently had around $65 million sitting in forfeiture-generated accounts; Harris County alone has more than a $14 million balance. However some DAs and police departments are using the funds for parties, trips, liquor, and even campaign contributions, he said We will "ruin a very good program," said Whitmire, if more accountability can't be added to the system.

Eric Nichols from the Attorney General's office laid out the utterly minimalist oversight mechanisms the law regarding forfeiture, which have barely changed since they were first enacted in 1989:

Seized money is placed in a special fund by the county or municipality whose officers seized it or who participated in the seizure, divvied up by percentage either by standing contract or in case by case agreements. Each agency receiving seized money must submit a budget for approval by its governing body (though later testimony revealed this doesn't always happen). Local governments must do audits, but only report a minimalist dataset from the audit on a brief questionnaire to the AG, which does not follow up with any examination "behind the numbers." Agencies that don't do audits are reported by statute reports to the Comptroller (more than a dozen per year, typically), which has the authority to do its own audits but has not done so in recent memory. No state agency audits or provides direct oversight regarding use of local forfeiture funds, said Nichols.

Sen. Rodney Ellis wanted to know how Texas' practices compared with other states, and asked the AG to prepare recommendations regarding whether it needed additional authority to investigate abuses regarding forfeiture accounts. Whitmire was interested in identifying which statutes a DA might be prosecuted under (and by whom) if they spent forfeiture money for unjustified purposes.

Department of Public Safety Commander Patrick O'Burke testified how DPS changed its own policies related to highway interdiction as a result of the overhaul of the agency's rules several years ago. In 2003 and 2004, he said, only seven people were convicted of money laundering statewide. An analysis of DPS practices at the time, said O'Burke, revealed that highway interdiction strategies yielded few arrests, little intelligence gathering or information sharing, and generally provided few positive law enforcement outcomes.

In response DPS began to focus more on outcome measures related to making investigation-generated arrests, identifying and prosecuting co-conspirators, and de-emphasizing asset forfeiture as an outcome by which officers' productivity was judged. (In fairness, perhaps it's easier for DPS to ignore the profit motive inherent in forfeiture laws because the money they seize goes into the state's general fund instead of a slush fund controlled by the agency.)

There was a sense at the hearing that the usual opponents of asset forfeiture reform found themselves back on their heels. Rob Kepple, speaking for the District and County Attorneys Association, surprised me by saying his members understood there were problems and that more oversight and accountability were needed. I would have expected TDCAA to oppose any changes to the current statute six ways from Sunday.

I like Whitmire's idea of spending asset forfeiture money on drug courts and treatment options. It makes a lot of sense considering a) $65 million is sitting around in local slush funds with no significant oversight, and b) there's a critical need for startup funds to expand drug courts around the state. Indeed, I think 10% for treatment is too low: Half or more sounds like a more reasonable number, at least as a starting point for discussion.