It’s a money machine:

IN 2005 the Montgomery County district attorney’s office held a party at the county fair in east Texas. They had beer, liquor and a margarita machine. The district attorney, Mike McDougal, at first denied that this had been paid for by drug money. He acknowledged that his office had a margarita machine at the fair. In fact, he said, they won first prize for best margarita. But he insisted they came by it fair and square. In any case, he pointed out, the county’s drug fund was at his discretion. Under Texas forfeiture law, counties can keep most of the money and property they rustle up.

As the drug war continues, the practice of asset forfeiture has come under question. Last year, according to the Drug Enforcement Administration, $12 billion was smuggled from the United States to Mexico. Federal officials seized about $1.6 billion of that. State and local agencies got many millions more. The idea is to discourage drug smugglers by taking away their profits. At the federal level, forfeited assets go into a dedicated fund. But at state level, various rules apply. In Indiana, for example, extra money goes to a general school fund. In Texas, most of it stays with the sheriffs or district attorneys whose offices found it.

This was meant to help out and encourage local law enforcement by giving officers some discretionary income. In most cases it does. But Mr McDougal’s margarita machine was not an isolated abuse. A district attorney in west Texas took his whole staff to Hawaii for a training seminar. Another spent thousands of dollars on commercials for his re-election campaign. John Whitmire, a Democratic state senator, wants to prosecute such abuses and held a hearing last month to examine the issue. He found an immediate obstacle to punishing the profligate district attorneys. “I ain’t figured out what the hell law they violate,” he said. Chapter 59 of the Texas criminal code, which covers forfeiture, is vague on the subject. It says only that assets must be used “for law-enforcement purposes”.

Mr Whitmire is mostly concerned with the waste of public money. But the asset-forfeiture programme has various problems. Some poorer counties have come to rely on drug money to pay for their basic operations. Even in counties that are not strapped for cash, there is an extra incentive for sheriffs to go after money, so they may have more interest in the southbound traffic than in people heading north.

Another concern is that the government has broad powers to seize assets. In criminal cases, forfeiture follows a conviction and so it requires a guilty person. In civil cases, the property itself is considered guilty, and the government has only to show by “a preponderance of the evidence” that the money or gun or car was somehow shady. That is a lower standard than the “beyond a reasonable doubt” used in criminal cases.

Sometimes the patrolman gets things wrong. In 2005, for example, Javier Gonzalez was stopped in South Texas with about $10,000 in cash in a gym bag. He was going to visit a sick aunt and planned to use the money to make funeral arrangements. He was pulled over, and the cash was seized…

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