This comentary originally appeared in The National Review on August 16, 2016.
A new report from USA Today uncovers a little-known scheme on the part of federal drug agents, who — in their attempt to intercept money couriers connected to the drug trade — have been mining American’s travel records in order to seize and keep hundreds of millions of dollars from these couriers, sometimes without even making arrests or pursuing criminal charges.
This practice, known as civil asset forfeiture, has received much attention in recent years. Originally intended as a powerful tool through which law enforcement could combat crime by seizing and repurposing the fruits of illicit activities, the practice has become a veritable Godzilla, targeting not just bona fide criminals but also innocent property owners, who don’t need to be convicted of any wrongdoing before having their property taken.
The type of property seized can vary widely, and in many cases, the amount is substantial. One Philadelphia couple had their entire house seized after their son was arrested for selling $40 worth of heroin out of it without their knowledge, while an aspiring musician recently lost $16,000 in cash when he was stopped on an Amtrak train on his way to Los Angeles, on mere suspicion that the money was connected to drug activity. In theory, forfeiture is supposed to proceed on the basis that law enforcement can demonstrate a nexus between such property and the commission of a crime on the part of the owner, and so legitimately deprive them of their ill-gotten gains. However, in these and many other instances, such connection is never actually proven in court. Instead, due to a legal oddity in which the property itself is said to have “committed” the crime, not the individual, law enforcement is able to take and keep it under far fewer legal hurdles than would exist if the owners were charged themselves.
Additionally, in a practice that amounts to profiling, the government may deem otherwise mundane behavior — flying on a one-way ticket, paying in cash, etc. — to be ipso facto suspicious, which means that many innocent people will be caught in a net meant for criminals.
Civil forfeiture is a major source of non-appropriated revenue for government at all levels, as a 2015 report from the Institute for Justice highlights. Annual deposits into the Justice Department’s Asset Forfeiture Fund reached $4.5 billion in 2014, with only 13 percent of such forfeitures coming after criminal convictions. Annual forfeiture revenue more than doubled across 14 states between 2002 and 2013.
The money derived from the Drug Enforcement Administration’s profiling efforts are no less staggering. According to USA Today, federal drug units attached to 15 of the nation’s largest airports seized over $209 million from at least 5,200 people over the last decade. Such seizures don’t necessarily ever see the inside of a courtroom. As the report details, people are usually just given a receipt and sent off to ponder how light their wallet suddenly feels — all without so much as an arrest.
Property owners wishing to contest such seizures usually have the cards stacked against them as well — as the attendant attorney fees, court fees, and loss of employment income are generally much higher than the value of the property itself. Most people don’t bother fighting it.
If this situation sounds like an abuse of constitutional due process, it is — and it gets worse. Because the property itself “commits” a crime under civil forfeiture, the burden of proof is on the property owner, who must prove that the property was not involved in criminal activity, or that he didn’t know, or couldn’t have known, that it would be used for that purpose. And since law-enforcement agencies usually get to retain most, if not all, forfeiture proceeds upon final disposition, this creates a perverse incentive to be as aggressive as possible in pushing civil forfeiture to its limits.
It isn’t just the government that’s making money, either. DEA agents paid one Amtrak secretary $854,460 over two decades to provide information on travelers. Initially this was done only at an agent’s request, but soon the secretary “began making queries on his own initiative.” The potential for civil forfeiture to corrupt otherwise well-intended law-enforcement activity is very significant, and evidently isn’t limited to government actors. Ordinary citizens should not be co-opted to aid in a constitutionally dubious practice with the allure of hefty remunerations, nor should they be incentivized to take law into their own hands.
But perhaps the most troubling aspect of this report is the dragnet nature of the DEA’s profiling efforts. The availability of rapidly accessible computer records — which, according to an American Airlines spokesman quoted in the report, wouldn’t normally be released without a subpoena — coupled with ubiquitous government agents based across the country makes for a forfeiture apparatus that can seize cash and other assets on an industrial scale. While agents may indeed be catching major players in the drug trade this way, that doesn’t absolve them from the necessity of making arrests and pursuing convictions once they’ve done so, instead of just seizing money and property.
“We want the cash,” proclaimed a former drug-task-force supervisor who oversaw one such operation attached to Chicago’s O’Hare International Airport. “Good agents chase cash.” This sort of sentiment is an unfortunate example of how the perverse incentives behind asset forfeiture can transform an otherwise legitimate crime-fighting tool into a constitutional nightmare, and well-meaning law-enforcement officers into de facto revenue generators.
Good agents don’t chase cash, they combat crime. They make arrests based on probable cause, and a prosecutor levies charges and makes a case in open court. The burden of proof — and it’s a heavy burden, designedly so – is on the government to demonstrate wrongdoing, not on the individual, who under civil forfeiture must come with hat in hand to prove his own innocence and seek recompense.
It’s high time to abolish our current system of civil forfeiture and reestablish a constitutionally sound process for relieving criminals of their ill-gotten gains, while protecting innocent property owners.