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The Booming Business of Civil Forfeitures

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Connor Simpson describes what amounts to a government scam:

The idea that your most prized possessions could be taken away from you at any moment by authorities with little-to-no justification is a terrifying one, but stories today from The New Yorker and ProPublica show civil forfeiture laws are forcing innocent citizens never charged with a crime to fight those who are supposed to serve and protect for their property in court. [NOTE: Read the articles at those two links: they are excellent. – LG]

Forfeiture laws have noble intentions at heart. They’re meant to give police the right, pending a judge’s approval, to seize money, vehicles and real estate from drug kingpins, Wall Street con men, or mobsters. Bad people should not be able to keep the good things they buy with bad money. But more and more cases are popping up where civil law is used to seize assets in cases where no criminal charges are laid, and often against citizens who may not have enough money to properly defend themselves in court. As ProPublica’s Isaiah Thompson explains, the burden of proof in a civil forfeiture case is much lower than a criminal one:

Doing so offers prosecutors considerable advantages. Unlike the “proof beyond a reasonable doubt” required in criminal law, prosecutors seeking civil forfeitures face a much lower standard. Usually, they need only prove that a “preponderance of evidence” connects the property — not its owner — to a crime. Technically, the property — not the owner — is named as the defendant.

Some of the case file names will surprise you. In one case defense attorney David Guillory, who recently settled a high-profile case against allegedly abusive civil forfeiture practices in Tenaha, Texas with the help of the ACLU, told to The New Yorker‘s Sarah Stillman, the case was simply “State of Texas vs. One Gold Crucifix.” That was all the officers seized.

The case in Tenaha, Texas drew national attention last year. People driving out-of-town rental cars along the known drug trafficking highway strip outside of town were often stopped and had their cars searched. If the officers found any amount of cash, or if they suspected drugs were in the car for any reason, they offered the drivers a choice: faces felony charges or have their possessions seized. It didn’t matter that there was no evidence linking their possessions to the drug trade. Most cases went off an officer’s claim that he could smell marijuana coming from the car. “This was, plain and simple, highway robbery,” Elora Mukherjee, an attorney with the ACLU, said at the time. The county settled with the ACLU and agreed to reform its forfeiture policies.

The reality is that most civil forfeiture cases are a lot like the ones in Tenaha, Texas. “There’s this myth that they’re cracking down on drug cartels and kingpins,” Lee McGrath, a legal expert on forfeiture cases in Georgia, explained to The New Yorker‘s Stillman. “In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.”

Civil forfeiture saw a dramatic rise after Congress passed the Comprehensive Crime Control Act in 1984 that established a fund-sharing program between local law enforcement agencies who helped federal forfeiture investigations. States established local forfeiture laws shortly after, and business boomed. In 1985, the Department of Justice took in $27 million in forfeiture proceeds. It has grown into a billion dollar business. Per ProPublica:

One measure is the growth of a program in which federal law enforcement officials seize property on behalf of local authorities in exchange for a share of the proceeds. In 2000, officials racked up $500 million in forfeitures. By 2012, that amount rose to $4.2 billion, an eightfold increase.

The New Yorker article begins:

On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar-and-grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border. They made the trip every April, at the first signs of spring, to walk the local wildflower trails and spend time with Henderson’s father. This year, they’d decided to buy a used car in Linden, which had plenty for sale, and so they bundled their cash savings in their car’s center console. Just after dusk, they passed a sign that read “Welcome to Tenaha: A little town with big Potential!”

They pulled into a mini-mart for snacks. When they returned to the highway ten minutes later, Boatright, a honey-blond “Texas redneck from Lubbock,” by her own reckoning, and Henderson, who is Latino, noticed something strange. The same police car that their eleven-year-old had admired in the mini-mart parking lot was trailing them. Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over.

He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.

No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.

Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.

The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)

The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.

“Where are we?” Boatright remembers thinking. “Is this some kind of foreign country, where they’re selling people’s kids off?” Holding her sixteen-month-old on her hip, she broke down in tears.

Later, she learned that cash-for-freedom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country. “Be safe and keep up the good work,” the city marshal wrote to Washington, following a raft of complaints from out-of-town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband.

Outraged by their experience in Tenaha, Jennifer Boatright and Ron Henderson helped to launch a class-action lawsuit challenging the abuse of a legal doctrine known as civil-asset forfeiture. “Have you looked it up?” Boatright asked me when I met her this spring at Houston’s H&H Saloon, where she runs Steak Night every Monday. She was standing at a mattress-size grill outside. “It’ll blow your mind.” . . .

Continue reading.

Later in the article, a critical point:

In general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with “probable cause” is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.

Yet another reason to avoid Texas.

Written by LeisureGuy

6 August 2013 at 11:12 am

Posted in Government, Law

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