Policing for Profit Is Morally Offensive by Dan Mitchell

 Since I’m an economist specializing in public finance, I get very upset about punitive tax policy and wasteful government spending.

But what really gets my blood boiling is reading about the horrific policy of civil asset forfeiture, which literally allows government to steal your property even if you haven’t been convicted of a criminal offense. Or, in many cases, even charged with any wrongdoing!

I’ve decided to revisit this issue because of a recent tweet reminding us that the people who are supposed to protect us actually take more of our property than burglars.

What’s particularly nauseating is that this policy gives law enforcement an incentive to misbehave.

Consider, for instance, these details from a 2014 story in the New York Times.

…civil asset forfeiture…allows the government, without ever securing a conviction or even filing a criminal charge, to seize property suspected of having ties to crime. The practice, expanded during the war on drugs in the 1980s, has become a staple of law enforcement agencies because it helps finance their work. …The practice…has come under fire…amid a spate of negative press reports and growing outrage among civil rights advocates, libertarians and members of Congress who have raised serious questions about the fairness of the practice, which critics say runs roughshod over due process rights. …Much of the nuts-and-bolts how-to of civil forfeiture is passed on in continuing education seminars for local prosecutors and law enforcement officials… In the sessions, officials share tips on maximizing profits, defeating the objections of so-called “innocent owners” who were not present when the suspected offense occurred, and keeping the proceeds in the hands of law enforcement…seized money has been used by the authorities, according to news reports, to pay for sports tickets, office parties, a home security system and a $90,000 sports car. …forfeitures were highly contingent on the needs of law enforcement. …Flat screen televisions…“are very popular with the police departments.”

This is why asset forfeiture is accurately described as “policing for profit.”

There was some good news on this issue last year in South Carolina, as reported by the Greenville News.

A South Carolina circuit court judge in Horry County has ruled the state’s civil asset forfeiture law unconstitutional, in violation of the U.S. Constitution’s Fourth, Fifth and 14th amendments. …Earlier this year The Greenville News published coverage from a two-year investigation into civil asset forfeiture in South Carolina. …Nearly 800 times when police seized money or property, no related criminal charge was filed. In another 800 cases, someone was charged with a crime but not convicted. …About 65% of the cases involved black men though black men make up just 13% of the state’s population. …John’s written decision found that South Carolina’s forfeiture laws violate both the federal and state constitutional protections against excessive fines by allowing the government to seize unlimited amounts of cash and property that aren’t proportionate to the alleged crime. …The judge’s ruling signals how he would approach forfeiture cases in his court in the future but doesn’t set precedent across the state.

What we really need, of course, is a ruling from the U.S. Supreme Court that civil asset forfeiture violates the Constitution (violates the presumption of innocence, excessive punishment, etc), and there are some reasons to hope that may soon happen.

It’s also good news that conservatives have joined with libertarians (such as the great people at the Institute for Justice) in opposing this egregious practice.

Here are some excerpts from a National Review article by Isaac Schorr.

The process is broken. …the government brings charges against the property itself without leveling any against the property owner. On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough. It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course. …Why has civil-asset forfeiture, which flies in the face of American expectations of due process and the presumption of innocence, been allowed to persist in its current form? It’s all about the Benjamins. …This practice…provides local authorities with perverse incentives. …they can move to forfeit property under federal law and take up to 80 percent of what the property is worth,” which gives them “a direct financial stake in forfeiture encourag[ing] profiteering and not the pursuit of justice.” What police department would not take advantage of such a profitable opportunity, particularly when those profits are not subject to the same oversight as taxpayer dollars?

When cops lose access to this loot, they naturally complain.

Here are some passages from a story in the Mercury News.

While the value of property seized in California has skyrocketed, the state’s share of the booty — which has traditionally helped fund local police agencies — has plunged. That’s largely because of a new state law seeking to protect personal property, allowing local agencies to keep proceeds from asset seizures only when people are convicted of a crime, rather than simply when they’re arrested. …California…passed laws — more stringent than the federal government — restricting when state and local police could seize private property. So local agencies worked around them by partnering directly with the U.S. Department of Justice in asset-forfeiture cases, bypassing the rules in state laws. SB 443 closes that loophole for state and local agencies — but not for the federal government, which can continue to seize property without criminal convictions. …The Golden State is trying to set a good example and do the principled thing, even as the federal government goes in the opposite direction, said Gregory Chris Brown, associate professor of criminal justice at Cal State Fullerton.

In other words, fixing this problem involves all levels of government.

Local law enforcement needs to stop policing for profit.

State government needs to stop policing for profit.

And Uncle Sam needs to get out of the racket as well.

Speaking of the federal government, the Obama Administration took a tiny step in the right direction, but the Trump Administration has been very unhelpful.

And what about the incoming Biden Administration? I haven’t seen any indication, but I’m not brimming with optimism given Biden’s generic desire for Washington to have more money, as well as his unpalatable record as a booster of the failed War on Drugs.

But hopefully he’ll surprise me.

In the meantime, let’s keep our fingers crossed for further reforms at the state level.

Let’s close by recycling a great video on this issue from the folks at Reason.

P.S. It’s worth noting that the first two people in charge of asset forfeiture for the federal government have since come out against this odious practice.

P.P.S. Here’s some sauce-for-the-goose-sauce-for-the-gander humor involving asset forfeiture.