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.”
Welcome to the club of “people opposed to discretionary enforcement.”
But FYI, it’s not the “right” in terms of “conservatives.” It’s the “right” in a more libertarian sense–the conservative right is quite different. And as it happens there’s actually a lot of overlap with people like me on the left: mostly the civil rights, free speech, criminal-defense types.
Didn’t I put an article or two from the Chicago Tribune about this very thing going on in Southern Illinois (or across the border in Missouri) up here a couple of years ago? This is nothing new. The couples were almost always black and from far enough away that they had no local resources they could call upon. The specific example involved a kid as well, IIRC.
However:
My emphasis. Gee, what was the haircut and avocation for the cop? For the people pulled over? What’s this all about?
Ahah, no – it wasn’t Illinois, it was Texas. But it was also March of 2009. This is the one I posted.
This has been going on for quite some time, folks.
Lots more at the link.
In fact, the Trib article even reported on one of the same cases cited above – the Boatright case. Nice to see that the The New Yorker picked up the story only ~4.5 years after the Chicago Tribune did.
Don’t forget things like the War On (Some) Drugs. Imagine the amount of money we’d save if we just stopped arresting people for selling or using marijuana. Money spent on lawyers (and very often the taxpayers are paying for the lawyers on BOTH sides of a case). Money spent on judges, cops, jailers, etc. Money spent on the jails. And all the costs, both financial and personal, that get spent on dealing with the violent crimes committed by the drug combines and importers to defend their turf. Hundreds of millions, I bet, because some people would rather smoke weed than drink booze, as if there’s that much difference in the costs, social or otherwise, of doing either.
And imagine the effect it would have on kids, especially minority kids, if they didn’t end up with a criminal record for something as stupid as smoking some weed or selling some to their buddies.
Well, Amp, this was a very good post on this terrible trend. Like others, I was dimly aware of this kind of thing before, but it’s great to be reminded of just how horrendous it is.
This, though:
… is one of the more notably nonsensical things I’ve ever seen you say.
First of all, it’s wrong. This confiscation thing is (as currently deployed) a form of retail infringement of our basic civil rights. The NSA thing is a wholesale infringement and threatens to directly impair the ability of Americans to organize in opposition to the current PTB.
Secondly, it falsely implies that we should be concerned about this thing and not so much the other thing. They are both horrible repudiations of the most basic principles on which this country was founded. There’s no reason to imply we should only be worried about one and not the other.
I don’t think it does. Amp says that civil forfeiture is a larger threat, not that we shouldn’t be concerned about the NSA’s activities. One is more dangerous than the other does not mean one is a concern and one is not a concern.
Forfeiture is a broader threat. Everyone is in existential fear of a state with that kind of economic power.
RonF, allow me to introduce you to sexism.
From reading the article, I don’t know Marshal Washington’s haircut. I do, however, know that he is tall with wide shoulders, “handsome and imposing in cattle-rancher boots,” not to mention his “faded bluejeans, a khaki Western shirt, a silver belt buckle, and a glittering badge.” I also know that he mentors high school youths, “is building a chapel on his own time, and plans to launch a ministry camp for kids.” And that he says that he knows that everything he’s done is all right with Jesus, and that makes everything okay.
Honestly, I think y’all may be barking up the wrong tree here. There is a general problem with how women are described in news accounts, but I’m not convinced that what this specific article does is wrong.
I was actually leaning more towards ethnic or cultural profiling, trying to make them look like provincial hicks to the New Yorker audience (wh0 are again only 4 1/2 years behind the times on this story compared to flyover country here in the Midwest).
1) Ron, if your point was that the NYer writer was trying to make the folks in the story look like provincial hicks, why did you complain about the way one Texan (the DA) was described by comparing it to how another Texan (Marshal Washington) was described? That doesn’t even make sense.
2) It may be that the New Yorker writer was trying to say “hey, look what a hick this DA is!” Or it may be that she was doing what New Yorker writers always do – trying to find colorful details to include. I’m open to the idea that what you’re talking about is real, but it’ll take more than a single, extremely ambiguous example to convince me that there’s a pattern.
3) It’s great that the Chicago Tribune covered this story five years ago, although they weren’t the first to cover it. There’s no rule that says that once one paper covers it, other papers aren’t allowed to. Nor is there anything wrong with me blogging the story I read, rather than searching the archives to find the oldest possible story on it to blog.
4) I find it interesting that you’re for legalizing pot. I literally don’t know anyone who’s against legalizing pot, not even among the conservatives I know, and yet polls say that half the country wants it illegal.
Ballgame,
1) What Jake Squid said. (Thanks, Jake). I am worried about both, and I’m sure many others are, too. (Although many don’t care about either – see below).
2) Part of why the comparison strikes me is that so many people seem surprised that the NSA thing isn’t a bigger deal to the American people. But stuff that (imo) is much worse than the NSA scandal- Americans being robbed of cash, having their doors busted down by swat teams, losing their homes, getting their dogs shot, sometimes getting shot to death – all perpetrated by government agents who are virtually never punished – happens all the time, with barely a peep of objection. Given that situation, it’s entirely unsurprising that so few people care about the far more abstract loss of freedom represented by the NSA scandal.
3) I can’t figure out what PTB stands for.
Ampersand:
I read it as “Powers That Be”.
Grace
D’oh!
As a Buffy fanatic, I hang my head in shame.
Hi! Nice to meet you!
Now you do :)
Admittedly, I’m juuuuuuust over the line, and I don’t support people going to jail for it.
To clarify for non-lawyers like me, does that mean it would be a misdemeanor, but not a felony?
You can go to jail for misdemeanors.
He means he wants the expressed judgment of the system to be “don’t use pot” so that the wavering middle won’t say “Judge Amp says weed is a-ok so let’s get hiiiiiigh!”, but that he doesn’t actually think the offense itself is bad enough to justify any actual imprisonment. (So presumably, fines + the hassle.)
I want weed completely off the books of the criminal system (unless you want to tax it like tobacco and criminalize importing it/selling it without paying tax).
Sorry, Amp, but gin-and-whiskey is correct: “The Right”, that is, conservatives, started this problem. Libertarians who are actually interested in stopping state abuse of power (rather than channeling that abuse of power towards Other People) have been all over this for a long time.
Civil forfeiture is very much not new, but up until the War on Drugs it was used exactly as it’s supposed to be used: to seize the profits of a crime. And then it dawned on some LEOs that the ongoing ‘war’ meant you could keep those profits and funnel it right back into fighting crime; i.e., state-sanctioned armed robbery. Also, conservative-appointed judges were regularly handing down decisions that said “Yes, this is an abuse of the concept of civil forfeiture but drugs, so whatevs.”
It may well be true that the right began this problem. But it’s also true that the best information on this issue comes from the libertarian right, who are (relatively speaking) all over this issue, while the left has paid it relatively little attention.
Oh, no props at all to the chattering-class folks who don’t care about this problem, now that law enforcement has stopped seizing yachts and Audis over a joint and has shifted to sticking it to poor people and minority groups.
How do you know it is their cash?
That’s not how the burden of proof is supposed to work in America.
—Myca
alex:
Presumption of innocence, among other principles, a principle so basic that the founders of the United States did not even think it necessary to make it explicit in the Constitution, even though its existence is presumed by sections of the Constitution.
The fact that you asked the question, unadorned, suggests that you think it’s okay for someone, or at least, the government, to take something which you have in your possession unless you can prove that it’s yours. But, of course, that is absurd. Almost no one can even prove ownership of the cash in their wallets. (Before you say, “I have a withdrawal slip”, first consider whether it bears the serial numbers of the bills, and then consider whether the bank can prove how it got the bills.)
Grace
alex, next time you get pulled over for speeding, I assume you’d be cool with the highway cop ordering you to empty your wallet. After all, who knows where that money came from?
Yes it is. If your SO walks off with all your shit the standard is balance of probabilities. If we both claim to own a particular rolex the one who proves to that standard gets it. A ‘presumptive possession’ standard – if I take something it is mine and you have to prove beyond reasonable doubt it isn’t if you want it back – would be pretty disturbing.
Yeah. I’m not worried about an audit trail, so have no problem making payments through the banking system, & so don’t carry huge amounts of cash. If you’re into thievery, drug dealing, prostitution, tax evasion ymmv.
Who said anything about “huge amounts”? The cop wants a latte after her shift and she forgot to hit the ATM, you’ve got ten bucks on you – done.
But thanks for clarifying that your actual position on this issue is “I got mine, Jack.”
I had a sister lose her new car to AF b/c she loaned it out to the wrong friend who was busted carrying a little pot. Live and learn I guess.
A lot of attention spent on the forfeiture and rightfully so but it’s just as problematic on the spending, meaning misspending of this money.
Some friends and I researched asset forfeiture expenditures and found all kinds of crazy purchases and uses by our police department under the last chief. A lot of it was well outside the authorized use of it. There’s a 15% clause that’s the maximum use for community programs but they have to tie into the crimes covered by AF, i.e. drug rehab programs for example. Examples of usage:
1) running equipment and expenses including entry fees for a police sponsored running relay event (illegal but this isn’t an uncommon abuse)
2) Furniture for divisions outside of narcotic, vice and gang units and what’s odd is that the furniture purchased was for a building that had been leased and inherited a bank’s furniture.
3) $30,000 a year (as part of that 15%) was used to fund the youth program which had nothing to do with LE at all, let alone drugs, gangs, organized crime and vice. BUT the head of the agency such as the police chief authorizes the use of this restricted funding and the youth program happened to be ran by the chief’s wife.
4) More computers, 135 than the whole department could use let alone the relevant divisions.
5) Expenditures on food and decorations for a Youth Day Festival (see above) that had nothing to do with LE let alone the divisions allowable to spend AF money.
6) Other uses that are problematic but more difficult to trace
You can FOI for the documents that police agencies submit to the federal office that oversees it and they have to include all litigation involving discrimination alleged by police employees. Yes, they are supposed to be audited but the “backup material” for each amount used is simply a listing of the expenditures , no invoices, no checks cashed or no material to prove that it’s legit.
Report it? Yeah you can do that but no one really cares. There’s a federal office that is supposed to deal specifically with auditing possible abuses of AF money but they don’t get back to you. I had a (now) hilarious conversation with the closest one to where I live, nothing really accomplished.
We met with the District Attorney, his special prosecutions head, his “professional integrity” head and got no where on the AF. He justified his blase attitude on the fact that his predecessor who he’d defeated in his elections had shady practices with AF monies during his brief tenure.
The only positive thing about is that we pressured the newer chief (whose annual AF reports look a bit cleaner) to report publicly where the money spent on the police relay race event was coming from and at least it wasn’t from AF.
But yeah it’s a joke.
An addendum to #2 is that we tried very hard to trace the “purchased” furniture and it doesn’t look like the pieces paid for by AF monies even were used by the police department at all. $85,000 worth, probably in a top level management or elected official’s office space.
Some of the computers are believed to have been sent to the IT division but not as part of any connection to the police department but other uses.
“First of all, it’s wrong. This confiscation thing is (as currently deployed) a form of retail infringement of our basic civil rights. The NSA thing is a wholesale infringement and threatens to directly impair the ability of Americans to organize in opposition to the current PTB.”
Are we so sure they are separate issues? Now that we know the NSA feeds tips to law enforcement that then get laundered through ‘parallel’ investigations, who is to say they don’t give tips if they hear about people carrying large amounts of cash?