New Mexico's Gov. Susana Martinez. Photo by Mallory Benedict, courtesy PBS NewsHour.
Every motorist who has ever fallen into a speed trap knows that abuses are inevitable when law enforcement becomes a tool for raising revenue rather than a means of protecting the citizenry.
They aren’t the only ones. Ask the people in and around Ferguson, Missouri. One of the significant reforms to come out of last year’s unrest there is a planned cutback in that city’s reliance on fines and penalties, collected mostly from its poor and minority residents, to fund local government.
But pushing back against revenue-raising programs is never easy, as state legislators are now often finding when they try to curtail asset forfeiture practices.
A “war on drugs” that has spanned nearly half a century has spawned a law enforcement industry that is determined to keep and enforce strict and, in many cases, pointless drug laws. This industry provides a good share of the resistance to the movement to legalize marijuana. And a spinoff of this industry is the confiscation lobby, a segment of law enforcement that is fighting efforts to repeal or reform the property forfeiture laws that, in many places, provide a major source of funding.
According to a recent article in The Wall Street Journal, prosecutor and police associations have increased their lobbying efforts in the wake of New Mexico’s broad new legislation nearly banning civil asset forfeiture outright. Since then, at least 12 states have considered measures to restrict forfeiture or to give law enforcement less control over forfeited proceeds, but most of these measures have failed.
Law enforcement defends forfeiture laws as an important crime-fighting and public safety tool. The theory is that forfeiture removes a great deal of the incentive for crimes such as extortion or drug dealing, and that it serves as a useful deterrent as well as an instrument of justice. Fair enough; the same can be said of speeding fines. But we don’t let highway patrolmen personally pocket the fines they generate. We shouldn’t be letting localities keep most of those fines either, if we want law enforcement to focus on public safety rather than revenue generation.
We have even stronger reason to deny law enforcement agencies the direct fruits of their forfeiture efforts. But that is exactly what is happening in many places, forfeiture’s critics are quick to point out. Some of this is by design. Under the Justice Department’s “equitable sharing” program, local law enforcement can keep up to 80 percent of revenue generated by forfeiture cases that they refer to the federal government. (Most forfeiture happens under federal law, though many states have established their own programs.) And while a warrant for a seizure is generally required, if an officer has probable cause to believe the property is subject to forfeiture, that requirement can sometimes be waived.
Through the equitable sharing program, proceeds from seizures may be used for overtime officer pay, training, building construction and improvements, and equipment. In Texas, the Journal reported, it isn’t uncommon for a third or more of a district attorney’s budget to come from forfeiture revenue. And in places where local rules about forfeiture are stricter than federal rules, such as California, some agencies are said to use federal law for seizures specifically to bolster their budgets.
By allowing law enforcement agencies to fold revenue from forfeiture into their own budgets, we have directly encouraged officers to interpret “probable cause” as broadly as possible without running afoul of the Fourth Amendment. As Sen. Chuck Grassley, R-Iowa, said at a Judiciary Committee hearing, “the process creates perverse incentives.” And this is before we even mention the allegations of outright abuse, which have also been leveled at some agencies.
Even if the benefits of civil forfeiture outweigh the drawbacks - a question upon which reasonable people can disagree - we should not funnel the proceeds back to law enforcement agencies themselves. The same crime-fighting purposes are served if assets seized through forfeiture are devoted to general government purposes. Even better, they could be dedicated to reducing government debt, which would avoid giving the public sector another tool to bloat itself at the expense of the general population. Either way, we would greatly cut down the incentive of law enforcers to target cash and other valuable property merely because they covet it.
Most officers tell the truth most of the time, but there will always be those who fudge or lie. Almost any front-line cop is subject to direct or indirect pressure to meet targets for “collars,” tickets, fines - and forfeiture. A cop who reaches into a vehicle, pops the trunk and finds a bag of cash may have a strong professional incentive to say he actually just saw the bag in the back seat, with money spilling out, in order to justify a warrantless arrest and seizure. And this presupposes the cop is honest enough not to just pocket that cash himself.
If law enforcement wants to argue the merits of seizure, fine. But let’s keep law enforcement honest by taking away the incentives for dishonesty. Besides procedural safeguards to ensure fairness, law enforcement should be financially indifferent to the consequences of its actions. This will put the brakes on the confiscation lobby.