March 31, 2017

Billions in Civil Asset Plunder

A new DOJ report sheds light on a very problematic police revenue source.

Our federal government has spent nearly a half-century fighting a “War on Drugs” with varying levels of success. One tactic introduced early on was the seizing of assets of those who were demonstrated to have acquired them through illegal means. Over the years, government at all levels has managed to make it even easier to secure billions of dollars of alleged profits from an illegal industry — the drug trade.

Yet while the fight against drugs has shifted over the years, from the marijuana and hallucinogens of the late 1960s, to the crack and cocaine of the 1980s, to a more recent surge in methamphetamines, the current opioid epidemic is different. It doesn’t necessarily affect the same younger, lower-class peer group as the previous drugs of choice did, nor does it have the same sort of distribution system as other narcotics. But the federal government continues to utilize asset forfeiture as a tactic, despite long-standing abuse of the process and past attempts to both document it and rein it in.

Loopholes in the current system allow for local law enforcement to partner with the federal government to assure that both get a nice piece of the action. This money has, in turn, allowed local investment in assets like drug-sniffing dogs, new police cars and equipment, and other paramilitary gear that police departments claim assists them in getting drugs off the streets. And seizure is politically popular, since people assume that only criminals are having their assets seized and therefore deserve it.

It’s no surprise, then, that yet another government review — the latest was put out this week by the Inspector General’s Office at the Department of Justice — delivers a scathing look at a practice that, by this estimate, raked in $28 billion of assets over the last 10 years. That’s a big revenue stream, and thus the real answer for why the practice continues to expand.

The IG’s 74-page review notes that the vast majority of these funds come from the efforts of the Drug Enforcement Administration (DEA). Yet, according to the report, out of 100 asset forfeiture cases selected for further review by the Inspector General’s office, “the DEA could verify that only 44 of the 100 seizures, and only 29 of the 85 interdiction seizures, had (1) advanced or been related to ongoing investigations, (2) resulted in the initiation of new investigations, (3) led to arrests, or (4) led to prosecutions. When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.” In other words, the majority of those who had their assets seized were, essentially, found guilty without due process.

And it’s the perception of “policing for profit” that civil libertarians have seized on in trumpeting the report.

“This report only further confirms what we have been saying all along,” added Institute for Justice attorney Darpana Sheth. “Forfeiture laws create perverse financial incentives to seize property without judicial oversight and violate due process.” Sheth added that the “only solution” to the issue would be to end the use of asset forfeiture entirely. The Institute has long been an advocate against the practice, with their second (and most recent) report on “Policing for Profit” released in 2015.

Ending civil asset forfeiture, however, would leave law enforcement with a fiscal hole to fill — in some jurisdictions, a massive one. No one wants to call for a tax increase, and seizures act as easy money: once assets are seized, there is about an 80% chance that no recovery will be sought by the owner, and even the majority of those efforts are unsuccessful. Others might simply consider it the price of doing business or may be embarrassed by how those assets were obtained.

But the Constitution’s Fourth Amendment prohibits illegal search and seizure for a reason, and it stands just as clearly now as it did when the Bill of Rights was first adopted 226 years ago. Carrying a large sum of cash is not illegal, and there are many who do so for legitimate reasons. (The same goes for certain cash transactions, although the IRS has begged to differ on that subject.)

Shaking down innocent people for cash would be called extortion if a criminal did it, so why should it be legitimate for governments to do the same? It’s indeed time to end this plunder once and for all.

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