Monday, June 16, 2008

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.


Anonymous said...

If I wore a hat, it would come off for Senator Whitmire. He gets to the truth of the matter and it does not matter who you are, Brad Livingston or whatever your name, he has a way of letting you know he is serious and expects the truth and for everyone to follow the Law.

He is writing the bill for Deferred Adjudacations. In Gov. Code 411.081, those Deferred Adjudacations are supposed to be automatically removed by the court where they are issued after the sentence has been completed, but this is not the case. Oklahoma does this automatically; now what is wrong with Texas? We do not follow any of the laws and every District Attorney, Judge and court does what they want to do without even knowing the laws.

I am not a lawyer, but I can look these laws up either on line or at the Court House Law Library.

Senator Whitmire, get them on track and force each and every court to follow the rules. I don't believe half of the judges who sit on a bench even know the laws don't care and think the court is their's and they can do whatever they wish to anyone's life. This has to STOP!!!

Anonymous said...

Who could forget Murphy Police Chief Billy Myrick during the NBC's To Catch A Predator" show, exclaiming, "That one's mine" whenever a suspect drove up in a particularly nice car.

Anonymous said...

Harris County has always had sticky fingers on seized funds.
Look at them closely.

Anonymous said...

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.

Yes, 'a very good program', indeed...if you believe in institutionalized theft on the part of putative 'public servants' who openly admit ("That one's mine!") that they're in it for the loot.

One more example of how the DrugWar has made a travesty of Constitutional guarantees against unwarranted incursions against our rights. And how it set the stage for even greater erosion of those rights courtesy of so-called 'anti-terrorist' legislation like the horribly mis-named 'PATRIOT Act' and the MCA.

The Founders warned us against what the usual trend of governing historically becomes: despotic, over time. And that the would-be despots almost always use some kind of 'emergency' to scare the public with to make them give up easily what they'd defend with force of arms should a would-be king try that kind of stunt outright. The DrugWar's been just peachy in that capacity. People never learn...

Crusty said...

I do not believe any funds from asset forfeiture (drug money, john cars, etc.) or fines for misdemeanors should go to any local government agency. We are incenting them in the wrong way. Their job is supposed to be 'Protect and Serve' not 'Prosecute, Incarcerate, and Generate Income.' Law enforcement and others need to never think about the monetary impact of their actions, but only if their action is benefiting the society around them.

Anonymous said...

Why the snark attack every time you mention prosecutors? Believe it or not, some of us have integrity and occasionally agree with you.

Gritsforbreakfast said...

I don't consider it snarky to say I was surprised by Kepple's testimony saying they'd accept new regulation, nor do I necessarily think that observation disputes the integrity of prosecutors. Was that your reference?

If my comments were too general I apologize, but here's why I made them: Along with the police union CLEAT, the DA's lobby is perennially among the most powerful opponents of even modest reform bills at the capitol on criminal justice. It's not "snark" to say so, nor to observe that Kepple's testimony runs counter to TDCAA's past opposition to similar proposals, including Whitmire's own bill in 2007. In fact, to my mind I was giving Kepple credit for taking a more thoughtful and progressive position than I expected. I honestly expected them to jump on any reform proposal with both feet.

The DA's association represents itself to be espousing prosecutors' views on their behalf at the capitol; if their routine opposition to even minor incremental change embarrasses prosecutors with integrity, such folks should make those views known to the association that represents them or speak up publicly when the group's stances don't reflect your views. Otherwise, it's hard not to attribute the association's positions to prosecutors as a class, since that's how they always portray it to the Legislature. However if I've done so erroneously in this case I regret it.

I've been doing this a while, and sometimes these posts bring some of my own unfortunate baggage to the table; thanks for reminding me the DA's lobby doesn't represent the views of every front-line prosecutor.

Anonymous said...

TDCAA can read the writing on the wall. They'll admit the obvious and concede to tighter rules on the loot raked in from highway piracy, if that means they can fight to the death to keep their hot check collection funds out of the hands of commissioners courts.