On the geography of asset forfeiture and the growing effort to restrict it

Check out a new report by the Texas Public Policy Foundation's Derek Cohen on geographical asset forfeiture patterns. (See the press release.) Declared the abstract,

insight into the volume and location of forfeitures is telling. It reveals where the practice may be overused, establishing a reliance on the proceeds of the legally dubious practice. Further, it also shows where and when standardized per-capita localities are aggressively pursuing more forfeiture, regardless of size. This report aims to demonstrate spatial patterns of forfeiture in raw  and per-capita terms, and highlight potential misconceptions and problem areas.

Basically, forfeiture's geography follows the population and highways where law enforcement finds particularly enticing targets of opportunity. A subhed summarized: "Aggregate Forfeiture Use is Similar to Population Distribution." That's mainly notable because it contradicts pro-forfeiture rhetoric about the practice combating drug traffickers. Cohen found that "Forfeiture is not common across the full length of the border" and instead it "is used most extensively along or near highways."

Forfeiture happens on highways for several reasons: Partially, it's from traffickers transporting cash payments for drugs back to Mexico. More typically, though, forfeitures happen at roadsides because a) traffic stops represent the majority of interactions between Texans and police and b) traffic stops represent a particular point of vulnerability for drivers because the Supreme Court has declared their Fourth Amendment rights in that setting are minimal and easily bypassed.

That said, though forfeiture volumes are greatest in cities, per-capita forfeitures are higher in rural areas, again mostly following highway patterns: "the amount of per-capita forfeiture activity tends to be greater outside of the major urban centers. This is doubly so in rural areas along major and minor highways, where it is not uncommon for a jurisdiction of only a few thousand Texans disproportionately forfeit tens and even hundreds of thousands of dollars per year."

As an aside, here's an interesting excerpt from the report's introduction about the difficulties of researching forfeiture patterns:

Much has been written admonishing civil asset forfeiture in Texas. From the conservative Texas Public Policy Foundation (Cohen 2015; 2014) to the libertarian Institute for Justice (Bullock and Carpenter) to the liberal Texas Appleseed (McDonald), groups have taken umbrage with the practice’s abhorrence to the rule-of-law, disregard for basic property rights, and disproportionate effect on certain communities. 

Still, defining just how much civil asset forfeiture occurs in Texas is impossible. Currently, Chapter 59 of the Texas Code of Criminal Procedure (Art. 59.06) mandates that agencies that engage in asset forfeiture only report topline summaries of the value of what is forfeited to the Office of the Attorney General (OAG). Further, until the 84th Legislature’s regular session had concluded, the OAG was not required to aggregate or publish this information (HB 530). Previous legislation seeking more transparency in the process had been defeated, garnering opposition from those that directly benefit from the practice.Thus, it has yet to be shown where forfeiture (of any stripe) is occurring in Texas, specifically those benefiting law enforcement; the quintessential “policing for profit” allegation.

For related content, see also this video from the Koch Institute and the Texas Public Policy Foundation's recent forum on asset forfeiture policy where Derek presented his findings. And here's an item from Watchdog.org interviewing him on the topic. That story mentioned the little-discussed interest of the Arnold Foundation on forfeiture issues which piqued Grits' interest:

The threat helped prompt the Laura and John Arnold Foundation in Houston to establish the Coalition for Public Safety last year.

In an editorial for the Dallas Morning News last year, the Arnolds dared suggest that one reason no one in Texas government is eager to raise the bar for asset seizures is how much the current system benefits law enforcement.

“Civil asset forfeitures have become a critical source of funds for many budget-strapped police departments and district attorneys’ offices throughout the state,” they wrote. “ We agree that forfeiture should be available to law enforcement. But not in its current form.”

If not in its current form, what form? Last year New Mexico and Montana became the first two states to require a conviction for law enforcement to take possession of cash and property involved in crimes.

Grits had earlier predicted asset forfeiture reform would be in play when the Texas Legislature convenes in 2017, and these developments are all evidence that reformers, particularly on the conservative end of the spectrum, are busily gearing up for that fight. TDCAA may need to do more than mock conservatives this time around to stop their momentum.