I strongly recommend reading this Sarah Stillman article about government abuse of civil forfeiture laws in The New Yorker. But prepare to be pissed off.
When they returned to the highway ten minutes later, Boatright, a honey-blond “Texas redneck from Lubbock,” by her own reckoning, and Henderson, who is Latino, noticed something strange. The same police car that their eleven-year-old had admired in the mini-mart parking lot was trailing them. Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over.
He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.
No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.
Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.
The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)
The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.
So what is civil forfeiture? It’s a way of allowing the police to steal our possessions while dodging the Fourth Amendment. That Amendment says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
But with civil forfeiture, the cops commit “seizure” without a Warrant or any but the most dubious probable cause, and are permitted to do fishing expeditions for anything of value they can grab, rather than knowing what they’re looking for.
In general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.
One result is the rise of improbable case names such as United States v. One Pearl Necklace and United States v. Approximately 64,695 Pounds of Shark Fins. (Jennifer Boatright and Ron Henderson’s forfeiture was slugged State of Texas v. $6,037.) “The protections our Constitution usually affords are out the window,” Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert, observes. A piece of property does not share the rights of a person. There’s no right to an attorney and, in most states, no presumption of innocence. Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of their seized goods. Washington, D.C., charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve.
Civil forfeiture laws are a side effect of the war on drugs, and also of post-9/11 anti-terrorism hysteria. People lose not only cash and cars, but in some cases their homes (for instance, if you have a grandson who lives in your house, and without your knowledge that grandson has sold a little pot, the government can take your home away from you, without a trial).
And, unsurprisingly, these tactics are applied disproportionately against Black and Hispanic people:
The public records I reviewed support Rulli’s assertion that homes in Philadelphia are routinely seized for unproved minor drug crimes, often involving children or grandchildren who don’t own the home. “For real-estate forfeitures, it’s overwhelmingly African-Americans and Hispanics,” Rulli told me. [...]
Patterns began to emerge. Nearly all the targets had been pulled over for routine traffic stops. Many drove rental cars and came from out of state. None appeared to have been issued tickets. And the targets were disproportionately black or Latino.
A few thoughts:
1 ) This sort of thing – everyday police and prosecutor abuse of ordinary citizens – is a much larger threat to Americans’ freedom than what the NSA is doing.
It should be shocking that prosecutors and cops are running extortion rings, threatening to take away our children unless we fork over cash. Ordinary citizens and network news anchors should be demanding to know why a vicious extortionist like Shelby County DA Lynda K. Russell isn’t behind bars. At the very least, it should be easy for both parties to agree on revoking or severely restricting civil forfeiture laws in every state.
But the truth is, most Americans don’t seem to care about freedom at all, at least not when it comes down to cops shaking down so-called “drug dealers” for money and taking away people’s homes. After all, if the cops weren’t doing that, we’d either have to reduce the police forces or pay more in taxes.
2 ) I hope that everyone here reads Radley Balko’s blog The Agitator, far and away the best blog on police abuse issues.
3 ) The cop who led the extortion ring in Tenaha, Texas, Barry Washington, is Black. Just because he’s Black doesn’t mean that he didn’t commit racial profiling. Many of the corrupt incentives which encourage cops to profile – in this case, money (Washington got tens of thousands of bonuses added to his salary for his efforts) – apply without regard to the cop’s race. That doesn’t make it any less racist.
4 ) DA Lynda Russell, on the other hand, seems to be a more traditional racist, forwarding emails that say “Be proud to be white! It’s not a crime YET . . . but getting very close!” and joke about shooting President Obama. (Russell has resigned from being DA because of the scandal).
5 ) As vile as individuals like Russell and Washington are, this isn’t an individual problem. As long as the legal system is set up to reward local governments for civil forfeitures with virtually no oversight or limits, and protects corrupt officials from legal consequences, this is going to continue being a problem, and people just like Russell and Washington will inevitably rise. Fixing the problem requires fixing the system.
6 ) One thing that makes fixing the system harder, as the report Policing for Profit points out, is “Equatable Sharing” laws, a Reagan-era innovation. Equitable Sharing is a Federal law that pays local police for enforcement of Federal civil forfeiture laws by letting the locals keep up to 80% of what they seize. So in states where voters or legislatures succeed in passing laws reforming civil forfeiture, police respond – and subvert democracy – by increasing their use of equatable sharing.
7 ) It really bothers me that the right is better than the left when it comes to focusing on and publicizing this issue – especially since right-wing sources typically ignore the racial profiling involved. So it’s good to see The New Yorker covering it prominently, as well as the ACLU. More of this, please.
8 ) The anti-drug warriors genuinely want the US to be a police state. I’ll close with this quote from Stillman’s article, in which she describes Marshal Washington’s deposition:
[Washington] explained his interdiction strategy, which relied on pulling over out-of-state cars for minor traffic violations, then looking for indicators of drug trafficking.
“And what are these indicators?” Garrigan asked.
“Well, there could be several things,” Washington explained. “The No. 1 thing is you may have two guys stopped, and these two guys are from New York. They’re two Puerto Ricans. They’re driving a car that has a Baptist Church symbol on the back, says ‘First Baptist Church of New York.’ They’re travelling during the week, when most people are working and children are in school. They’ve borrowed this car from their aunt, and their aunt is back in New York.” Profile factors like these, Washington explained, could help justify the conclusion that the two men’s money was likely tainted by crime. But also, he said, “we go on smells, odors, fresh paint.” In many cases, he said he smelled pot. In other cases, things smelled too fresh and clean, perhaps because of the suspicious deployment of air fresheners.
Later, the discussion turned to specific traffic stops. Garrigan asked about Dale Agostini, the Guyanese restaurateur who wanted to kiss his infant son goodbye before being taken to jail for money laundering. Why did Washington think he was entitled to seize the Agostini family’s cash?
“It’s no more theirs than a man on the moon,” Washington said. “It belongs to an organization of people that are narcotics traffickers.”
“Do you have any evidence, any rational basis to tell us that this money belonged to an organization of narcotics traffickers?” Garrigan asked. “Or is that more speculation?”
“I don’t have any evidence today,” Washington said. [...]
“Is there any limit?”
“No. President Reagan says there’s no limit. It’s time to get serious about this thing. And I think that’s how some of our laws are the way they are, is because it’s time to fight the war on drugs and say, ‘Let’s fight them,’ instead of just saying we’re going to do it.” [...]
“Do you, for some reason, think people driving up and down 59 owe you an explanation for why they might have money?”
“Sure they do.”
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