While we are told that the Constitution protects us from "unreasonable searches and seizures," and that our property cannot be taken from us without "due process," the reality is much less reassuring.
Beginning in the 1970s, law enforcement officials began trying new methods to counter organized crime associated with the illegal drug trade. The concern was that those most responsible were those most difficult to bring to justice through the normal criminal justice paths. The intent was to punish by confiscation of property those who could not be punished by criminal statute. The definition of property associated with criminal activity was quite broad. One should recognize that this is moving law enforcement into murky areas.
Such forfeitures were comparatively rare until the passage of the Comprehensive Crime Control Act in 1984 and the establishment of a program called Equitable Sharing. The goal seemed to be the enhancement of law enforcement activities without having to pay for the increase. The federal government was providing local law enforcement agencies a way to earn money by arresting people and confiscating their property. The more people arrested, the more money earned.
"Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.)"
Drug arrests and property forfeitures soared as police officers, law enforcement agencies, and even communities began to depend on this source of income. Not surprisingly, there were abuses of the privilege.
To address this issue, Congress passed the Civil Asset Reform Act in 2000 in an attempt to limit the extent of forfeiture actions and to provide more legal rights for those whose property had been taken.
The way the process works, the government sues the property itself, not the owner of the property. If a court approves the action, then the owner has to sue to overturn the ruling. Not many people can afford the cost of pursuing justice in such an instance.
The courts have given law enforcers broad latitude in determining what property is liable to forfeiture. In 2006, in United States v. $127,000, an appeals court overruled a lower court and ruled that a Latino driver who was stopped with the indicated sum of money in his car provided suspicious enough circumstances that the police could confiscate the funds as drug-related money. No evidence of a crime existed, and none was needed.
The laws, both state and federal, are vague and can be interpreted as needed. The financial incentives continue to exist, and the need for revenue from forfeiture has become more acute as the economic situation has limited other sources of revenue.
Stillman provides several examples of what civil forfeiture has meant in practice. Two of these will serve to illustrate the seriousness of the issue.
Jennifer Boatright and Ron Henderson and two children, were driving from Houston to the town of Linden. They planned on buying a used car in Linden and were carrying cash to cover the purchase price. They passed through the town of Tenaha on the way and were pulled over by a police car. They were told that they had been stopped because they had been driving in the left lane for more than a mile without passing. The police then asked if they could search the car for drugs. This is what ensued.
After waiting an hour the county district attorney, Lynda K. Russell, showed up and made them an offer they could not refuse.
They were told that the police thought they were criminals, but if money was paid, they could be set free. Was there ever a more obvious example of a shakedown?
Lest one think that this is a possibility only in remote rural areas of Texas, consider the case of Mary and Leon Adams a black couple in their eighties living in their home in West Philadelphia. Also living with them was an adult son, Leon Jr.
Leon Jr. was said to be involved as the seller in a few $20 marijuana transactions with a police informant. The police sent a SWAT team to break down the door (without warning) and arrest the son. A month later:
There was this justification for the abrupt action.
Stillman discovered that about 100 properties in the city are seized and auctioned off each year.
The Adamses did receive a bit of a reprieve.
"’We had no money,’ Mary told me, so they couldn’t hire a lawyer. But they learned of a free "Civil Practice" clinic at the University of Pennsylvania Law School, run by Louis Rulli, where students help indigent homeowners challenge civil-forfeiture claims."
Conversations between Stillman and Rulli included the contention that home forfeitures were common and they were mostly imposed on defenseless minorities.
To further make his point, Riulli summoned this counterexample.
The Adamses are still in limbo waiting for their case to be resolved, but they at least have legal representation.
Boatright and Henderson fought back, and with numerous other victims became part of a successful class action suit. They received no reimbursement for their loss, but did have the satisfaction of seeing Tenaha ordered to stop robbing drivers as they passed through. The Texas state legislature was sufficiently embarrassed that they placed some minor restrictions on what law enforcement agencies could do with seized property.
Stillman finds that a few significant patterns have emerged from her research. She has concluded that it is the financial incentives that drive the abuse of the system. In states where there is no local control over seized items there is little abuse evident. Where there is financial gain to be had, the temptation is too great to resist.
Another conclusion is that it is not wealthy and powerful criminals that have the most to fear. Rather, it is minorities and others who appear too poor or too frightened to cause any trouble.
The focus here has been on drug-related incidents, but forfeiture laws are much broader than that.
And remember—one needn’t be guilty—only worthy of "suspicion," or associated with a person worthy of "suspicion."