If you liked my speech and want to support my nonprofit (and yes, I know that the banner in the video misspells “forfeiture”), you can visit Americans for Forfeiture Reform at www.ForfeitureReform.com or at www.facebook.com/ForfeitureReform
You should also make a donation through our Indiegogo fundraiser: http://www.indiegogo.com/projects/261393?a=294469
From WAVY in Virginia:
The Middlesex County sheriff is being investigated by police for allegedly using county and state funds for himself.
Search warrants were filed in Chesapeake court this week for a BB&T account and a Wachovia account, one belonging to the Sheriff Guy Abbott’s forfeiture account, the other to what appears to be his personal account.
“I would hate to think that people that are suppose to protect us would go ahead and do something like that,” said Middlesex County resident Dee Bookins.
Investigators searched bank statements, signature cards, deposit slips and checks dating back 10 years. They found evidence to support allegations of embezzlement and misuse of county and state funds.
Those funds were allegedly allocated for personal use by county officials, namely Abbott.
Evidence included receipts from the Middlesex County sheriff’s office asset forfeiture account and reports Abbott sent to the Virginia Department of Criminal Justice Services.
There were also 21 itemized Mastercard statements between 2000 and 2002.
Virginia’s forfeiture laws are pretty loose. The Institute for Justice’s recently published 50-state report on forfeiture laws awards Virginia a D- and notes that Virginia lets 100% of forfeiture proceeds directly go to law enforcement; over most of the last 15 years this has sent an average of $7.2 million to law enforcement each year. Most of this money, if not all, has negligible civilian oversight, and it is often too easy to hide money in different funds, property, and other tangible assets that directly benefit individual law enforcement officers. It’s nice when you get to use the company car; it’s sweet when your work gives you under-the-table cash bonuses, SUVs, and unregulated expense accounts if you can keep making seizures of property from people who are too poor or politically weak to defend themselves in court.
Cross-posted at Americans for Forfeiture Reform.
I spoke yesterday to the Columbia City Council presenting my white paper on how to reassert civilian control over law enforcement in Columbia, Missouri. I was part of a group of people who might be variously labeled as libertarians who were at the council meeting to speak out against the policies implicated in the February SWAT raid of a suspected cannabis dealer that resulted in two small dogs being shot in front of a seven-year-old child, with nothing meaningful to show for the subsequent search or arrest.
Video of the city council meeting is here. I speak at 2:52.40. Mitch Richards, a libertarian member of Keep Columbia Safe, addresses some of the same issues that I do at 2:27.35 and I recommend listening to his speech as well.
Addendum: Greg Young comments on my white paper and posts it in full here. Coverage from the Columbia Missourian is here. Coverage from the Columbia Tribune is here.
At 5pm tomorrow, I’ll be on KOPN 89.5 FM in Columbia, Missouri with with hosts Steve Spellman and Mitch Richards, who will be interviewing me about a white paper I wrote on the topic of of re-asserting civilian control of domestic law enforcement. I will be talking very specifically about civil asset forfeiture laws and the constitutional issues involved. Radley Balko from Reason Magazine might also be joining us for the discussion. You can listen live on your Iphone using the Public Radio Player app.
I sat down with Missouri State Auditor Susan Montee last night and talked to her about her 2009 report on civil asset forfeitures in the state of Missouri. I’ll have more to blog about soon, but wanted to highlight a couple things I learned.
The reports she received from prosecutors around the state detailing the extent of civil forfeiture activities were a ‘mess’. Often the records are misplaced or lost or ineptly kept, making her job compiling the the information necessary for a report difficult. There also appears to be little or no oversight of ‘adoptive’ or ‘equitable’ forfeiture, a mechanism that state and local police in Missouri have used in the past to dodge state requirement that proceeds from forfeited assets be turned over to the general fund. The current law requires judicial approval when assets are transferred between state and federal authorities in equitable forfeiture and I think is limited to assets seized with help from the federal government, but I am unable to find evidence that this law is being properly followed or enforced. Indeed, the large amounts of money moved around in this way by Boone County, Laclede County, Butler County, and New Madrid suggest to me that police agencies around the state continue to use adoptive forfeiture to retain control of the proceeds from seized assets for their own purposes.
Missouri law also mandates that civil forfeiture also be accompanied by ‘criminal action’ to prevent innocent people from having their property seized. Unfortunately I don’t know if the descriptor of ‘criminal action’ is equivalent to a conviction; it is still possible to seize and keep property and file charges that are dropped while satisfying the requirement for ‘criminal action’. Of course, this is problematic.
I’ll have more soon; I’ll be meeting Montee again next week to cover the subject in more detail.
This weekend I’ll be heading to the Young Democrats of Missouri state convention in Springfield, Missouri. At this point, I have scheduled interviews with Rep. Stephen Webber (D-23), MO State Auditor Susan Montee, MO State Treasurer Clint Zweifel, MO Attorney General Chris Koster, Missouri Democratic Party Chairman Craig Hosmer. That list will probably grow during the weekend, but hopefully I’ll get some content that I’ll be able to format in posts both here and over at the Boone County Democrats. There might even be some video (a friend has generously donated his Flip HD camera).
I did particularly want to note that my interview with Susan Montee will include some questions to flesh out her latest audit on civil asset forfeitures performed in the state during 2009.
From Forfeiting Our Property Rights by former Representative Henry Hyde (R-IL), published 1995 by the Cato Institute, page 3:
Before going further, I think it appropriate to consider the basic principle that unchecked forfeiture undermines–the right to private property–and why that principle is so important in America, or in any just society. True, we are dealing with an abstract principle we usually take for granted, but the right to own and enjoy property protects and enhances the lives of all citizens. Without it, human being are reduced to misery and want. The stark reality of this truth is never so evident as when a squad of government agents breaks down your door, guns drawn, and confiscates your family home. That might sound dramatic. But too often that is the reality of modern American forfeiture law.
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.
Ducks and Economics 