Ducks and Economics

During my sophomore year in high school, I competed in policy debate. My partner and I chose to run an affirmative advocating the end of the system known as civil asset forfeiture, a relic of ancient English common law that has made an ugly reappearance since the passage of the Racketeer Influenced and Corrupt Organizations Act (RICO) in 1970. This topic has always remained on my radar and since that debate topic I have kept current with both the literature on the subject and have written several essays against it.

The basic premise of civil asset forfeiture is that under a truly ancient and archaic legal theory, the government can level a charge of being the product or accessory to a crime against property itself. Note that this completely changes the game. In criminal prosecutions, the government has the burden of proof and is held to a standard of reasonable doubt. Additionally, defendants enjoy numerous (though not always sufficient) protections, like the right to counsel and the right to due process. In civil actions, and particularly in a civil forfeiture action, the government only has to establish a preponderance of the evidence in order to obtain a forfeiture.

Note the trick here. A preponderance of the evidence standard is something that few people are familiar with, in part because it’s used as a criteria for adjudicating guilt so rarely. But consider the trap this puts an innocent person. The government seizes an asset on some arbitrary charge and provides an informant’s affidavit as evidence. An innocent citizen now has to prove a negative in order to retain the rights to their property by providing evidence of superior quantity and quality. This is nearly impossible for citizens implicated in the vast majority of civil forfeiture actions who now have to prove that their property (not themselves) are innocent. Additionally, since the forfeiture action vests against the property, not the property owner, the owner’s complicity in the alleged crime is actually irrelevant.

Imagine a paid informant provides evidence that a black man of some variety will be transporting a large amount of cash for a criminal activity through a certain town. On the strength of that reasonably vague affidavit, the police can stop and search almost at will. If they find a black man actually in possession of a large amount of cash, the affidavit constitutes probable cause for the seizure and evidence for the forfeiture action, regardless of whether or not the man is a criminal or the cash is for illicit purposes. The property owner now has to provide evidence that outweighs a sworn affidavit describing in generic but apt language the suspicion vested by the police on the strength of an informant who has no accountability for his testimony and is paid to provide the police with justification for warrants. In this case, this means accounting for the cash in every last detail of where it was from and where it was going. Generally, this is a costly prohibitive burden on the politically weak, particularly when traveling. One must deal with the expense of travel and the opportunity costs of having to be in other jurisdictions for proceedings, along with the cost of an attorney and the cost of proving impossible negatives.

In other words, this forfeiture can happen without the DA ever filing a charge. The calculation now is: we found a criminal and took his cash and we don’t even have to go to the expense and trouble of prosecution. The informant is even eligible for a cut of the seized property. This presumably exists to incentivize criminals to turn their associates by holding out the promise of financial gain. Note that when there is no check on informant credibility, this is a system that can be gamed by criminals for money.

It gets worse.

So many states have laws specifically deeming that the proceeds of forfeiture return to specific general funds, like education or healthcare. So police departments should have no incentive to seize without really having probable cause, right? Wrong. The federal government in many cases helps state and local police agencies subvert their own laws through a clever loophole. The loophole works like this: the state police find an asset in an appropriate situation where forfeiture is easy and unlikely to be contested. They then ‘detain’ the asset until a federal agent arrives and initiates a seizure under federal law. The asset is then liquidated and the local police get a kickback that is usually around 80% and goes straight to their budget.

In one fell swoop several fundamental checks and balances are cut out of the picture. First, there is the obvious dishonesty and travesty of letting one level of government actively subvert the will and intent of another level. Second, this allows police departments to become in theory self-funding, which eliminates the legislative check on executive power, since the legislature’s control of the public funds now becomes meaningless. This is a subversion of democracy that happens on both the state and federal level.

This is the first in what I intend to be a series of posts on this subject. Later posts will explore the specific constitutional violations that accrue through the use of civil asset forfeiture, the harms of letting police departments self-fund, and several other nuances to this story.

I am indebted to Mickey Klebanov, David Kramer, and Eric Kafka for the numerous conversations we had on this topic.

Addendum: Ilya Somin at the Volokh Conspiracy blogs about civil asset forfeiture here. Recommended.