Making the conservative case against civil asset forfeiture

Yesterday, Grits attended a Texas Public Policy Foundation sponsored panel at the capitol on the topic of civil asset forfeiture reform. It was moderated by Derek Cohen of the Right on Crime initiative (who authored a paper on forfeiture for TPPF earlier this year) with Andrew Kloster of the conservative Heritage Foundation, Matt Miller from the libertarian Institute of Justice, Shannon Edmonds from the state prosecutor's association, and state Rep. David Simpson, an East Texas Republican.

To a large extent, Simpson and conservative reformers were in agreement. Civil asset forfeiture is abused, mostly targeting small amounts of money and personal property instead of going after "kingpins" as was promised when the laws were passed. Most of the recommendations offered will be familiar to long-time Grits readers such as requiring a criminal conviction before a civil seizure (a reform undertaken recently in Minnesota); putting seized monies in state or county general funds instead of law-enforcement budgets; shifting the burden of proof to the state before property may be seized; adopting a minimum threshold for seizures to avoid the petty mulcting witnessed in Tenaha ($25,000 or $50,000 were mentioned as possibilities); and more detailed reporting about assets seized and how the money is spent. Rep. Simpson made a particularly strong case for limiting civil seizures to cases with convicted defendants.

Kloster highly recommended three resources worth passing on to Grits readers:

• A 2013 article from the New Yorker titled, "Taken."
• A multi-part series from the Washington Post titled, "Stop and Seize."
• An hilarious segment on asset forfeiture from John Oliver's HBO show, Last Week Tonight.

While somewhat surprising that a Heritage man would recommend such "liberal media" sources, it shows how this topic has become a bipartisan concern that defies ideological labels. There's a left-right coalition to be had on the topic - certainly in Texas and, according to Kloster, also in Congress, which he suggested will see legislation proposed on this topic by Republicans in both chambers next year.

Miller described watching asset forfeiture proceedings in Harris County. On one side of the courtroom, prosecutors had a small law office, he said, with stacks of boxes full of case files with styles such as State of Texas vs. $832, or State of Texas vs. 1989 Chevy Impala. Almost all the cases, he said, were for very small amounts. (He mentioned a study out of Minnesota which found the average forfeiture amount there is about $1,200.) No one was at the defense table, he said, for obvious reasons: Who would pay a lawyer $3,000 to dispute an $832 seizure?

Miller agreed with an audience member during the Q&A that a possible solution may be to allow recovery of attorney fees if assets are recovered from the state, but Kloster demurred to his group's tort-reform stance and said Heritage wouldn't go that far.

Shannon Edmonds from the Texas District and County Attorneys Association had been asked to the event as a last-minute replacement and did his best to counter his fellow panelists. He portrayed conservative motivations for forfeiture reform as stemming from a general desire to reduce government budgets and de-fund law enforcement, citing Grover Norqust's famous line that he wanted government small enough to drown in a bathtub. I found that point a bit disingenuous. It's certainly not parsimony that motivates folks like Mr. Miller, for example, who before asset forfeiture was active fighting for eminent-domain reform. Shannon's critique failed to acknowledge the personal freedom/property rights motivations of movement conservatives on this topic.

Edmonds suggested that elections provided sufficient oversight. The DA who famously bought a margarita machine with forfeiture funds lost his next election, he pointed out, also citing Dallas DA Craig Watkins misspending of asset-forfeiture funds as a contributor to his recent ouster. Of  Miller's description of Harris County forfeiture proceedings, he declared, "That's a lot of due process for $832."

Texas' asset forfeiture laws were passed in 1989 at the height of Texas' worst-ever crime wave, Edmonds reminded the crowd, and has been amended every session since then. Most changes were to broaden the statute's scope to allow for more, easier seizures, he said. But state Sen. John Whitmire had also passed reforms in response to the Tenaha mess and other scandals that placed new restrictions on officers' ability to coerce drivers to sign roadside waivers, modestly strengthening due process before forfeiture proceedings may go forward.

Finally, perhaps thanks to truncated preparation time, Edmonds reverted to an argument he frequently uses in other contexts - particularly whenever anyone suggests scaling back "over-criminalization" - (mis)quoting G.K. Chesterton to say, “Don’t ever take a fence down until you know the reason why it was put up.” In this case, though, that's hardly a compelling sentiment. We know why the law was enacted: To seize money from drug "kingpins." And clearly cases like State vs. $832 aren't targeting kingpins. The law was supposed to de-fund drug smuggling organizations which instead have flourished unabated throughout the last quarter century and possess so much liquidity that their cash may have saved the economy during the 2008 global banking crisis.

In sum: The law was created to target kingpins but in practice is used on small-timers. It was supposed to de-fund cartels but instead at most has amounted to a minor, inconsistently applied tax on them. It was supposed to provide extras for law enforcement but increasingly many departments rely on forfeiture to make their budgets. We know why the fence was built. Which brings us back to Shannon's quote attributed to Chesterton, which is actually a quote from John F. Kennedy paraphrasing him. Here's the actual Chesterton quote (from his 1929 book, The Thing) on which Kennedy's comment was based:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

In that light, today's reformers find themselves in an excellent position to advocate destruction of the civil-forfeiture fence. (By "destruction" I mean requiring a criminal conviction before seizure.) The reasons for its creation are both well known and profoundly flawed. It has failed at all its stated goals except revenue generation, which was supposed to be a happy side effect, not a primary motivator. Moreover, forfeiture has generated a litany of unintended consequences from skewing law enforcement priorities to eroding public faith in the rule of law.

Good fences make good neighbors but crappy fences are a blight. It's past time to tear this one down.