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.