In the comments to my post on a local physician Syed J. Akhtar-Zaidi whose bank accounts and other assets had been seized by the overzealous US attorney Steven Dettelbach for this area because they claim he was prescribing pain killers indiscriminately to make money, reader jimmyfromchicago gave me a link to a long article in the New Yorker magazine by Sarah Stillman about these civil forfeiture laws. What she describes is shocking, a terrible violation of any kind of due process protections, where law enforcement is able to confiscate people’s belongings without even charging them with any crime.
How did this come about? It is another case of the government passing draconian laws that are supposedly aimed at major criminals, in this case organized crime bosses and drug king pins, and then turning around and using those same laws against ordinary people who cannot defend themselves the way that the big shots can. We have seen this tactic used over and over again, like in the so-called ‘war on terror’, which is why I am deeply skeptical when lawmakers urge some action that violates civil liberties and due process by arguing that it will be used to prevent some major catastrophe.
In this case, the culprit is a 1984 statute called the Comprehensive Crime Control Act.
It established a special fund that turned over proceeds from forfeitures to the law-enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. Soon states were crafting their own forfeiture laws.
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.)
Many states, facing fiscal crises, have expanded the reach of their forfeiture statutes, and made it easier for law enforcement to use the revenue however they see fit. In some Texas counties, nearly forty per cent of police budgets comes from forfeiture. (Only one state, North Carolina, bans the practice, requiring a criminal conviction before a person’s property can be seized.) Often, it’s hard for people to fight back. They are too poor; their immigration status is in question; they just can’t sustain the logistical burden of taking on unyielding bureaucracies.
Yet only a small portion of state and local forfeiture cases target powerful entities. “There’s this myth that they’re cracking down on drug cartels and kingpins,” Lee McGrath, of the Institute for Justice, who recently co-wrote a paper on Georgia’s aggressive use of forfeiture, says. “In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.”
Stillman starts her narrative in the tiny town of Tenaha, Texas that stops motorists who are passing through and on the pretext that the occupants fit the profile of being drug couriers, confiscates all the money that the people have even if no drugs are found.
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.
“Where are we?” Boatright remembers thinking. “Is this some kind of foreign country, where they’re selling people’s kids off?” Holding her sixteen-month-old on her hip, she broke down in tears.
When Jennifer Boatright and Ron Henderson complained to the county in the hope of retrieving their savings, they got another surprise. Lynda Russell, the district attorney, told them she had warned “repeatedly” that they did not have to sign the waiver, but, if they continued to contest it, they could be indicted on felony charges. “I will contact you and give you an opportunity to turn yourself in without having an officer come to your door,” she wrote in a letter mentioning the prospect of a grand jury. Once again, their custody of the kids was threatened. Boatright and Henderson decided to fight anyway.
Stillman describes the legal basis for such outrageous actions.
The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime.
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.
The police use these asset forfeiture even against people who are not themselves suspected of any involvement but have a relative who is. Stillman tells the story of an elderly couple Mary and Leon Adams whose home where they had lived for fifty years was invaded by police who told them that it had been seized and hat they had to vacate it in ten minutes. Why? Because their son who lived with them had sold $20 worth of marijuana to an undercover police officer.
What is appalling is that most of these actions are taken against people who are poor because the police and the local district attorneys know that they cannot fight back. For such people, their modest home, car, and meager possessions are all that keeps them from being homeless and destitute. The government comes down hard on such people while the big criminals like the Wall Street financiers and the torturers go free. It is nothing less than government-sanctioned abuse of the defenseless.
It is a disgrace.