Reason: The Forfeiture Racket

[Winehole23]

The Forfeiture Racket

Police and prosecutors won't give up their license to steal.

Radley Balko from the February 2010 issue
Around 3 in the morning on January 7, 2009, a 22-year-old college student named Anthony Smelley was pulled over on Interstate 70 in Putnam County, Indiana. He and two friends were en route from Detroit to visit Smelley’s aunt in St. Louis. Smelley, who had recently received a $50,000 settlement from a car accident, was carrying around $17,500 in cash, according to later court do ents. He claims he was bringing the money to buy a new car for his aunt.



The officer who pulled him over, Lt. Dwight Simmons of the Putnam County Sheriff’s Department, said that Smelley had made an unsafe lane change and was driving with an obscured license plate. When Simmons asked for a driver’s license, Smelley told him he had lost it after the accident. Simmons called in Smelley’s name and discovered that his license had actually expired. The policeman asked Smelley to come out of the car, patted him down, and discovered a large roll of cash in his front pocket, in direct contradiction to Smelley’s alleged statement in initial questioning that he wasn’t, in fact, carrying much money.


A record check indicated that Smelley had previously been arrested (though not charged) for drug possession as a teenager, so the officer called in a K-9 unit to sniff the car for drugs. According to the police report, the dog gave two indications that narcotics might be present. So Smelley and his passengers were detained and the police seized Smelley’s $17,500 cash under Indiana’s asset forfeiture law.


But a subsequent hand search of the car turned up nothing except an empty glass pipe containing no drug residue in the purse of Smelley’s girlfriend. Lacking any other evidence, police never charged anybody in the car with a drug-related crime. Yet not only did Putnam County continue to hold onto Smelley’s money, but the authorities initiated legal proceedings to confiscate it permanently.


Smelley’s case was no isolated incident. Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show “probable cause” that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof “beyond a reasonable doubt.” Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.


Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently. And in Indiana, where Anthony Smelley is still fighting to get his money back, forfeiture proceeds are enriching attorneys who don’t even hold public office, a practice that violates the U.S. Cons ution.


Guilty Property, Innocent Owners

Technically, civil asset forfeiture proceedings are brought against the property itself, not the owner. Hence they often have odd case les, such as U.S. v. Eight Thousand Eight Hundred and Fifty Dollars or U.S. v. One 1987 Jeep Wrangler. The government need only demonstrate that the seized property is somehow related to a crime, generally either by showing that it was used in the commission of the act (as with a car driven to and from a drug transaction, or a house from which drugs are sold) or that it was purchased with the proceeds.


Because the property itself is on trial, the owner has the status of a third-party claimant. Once the government has shown probable cause of a property’s “guilt,” the onus is on the owner to prove his innocence. The parents of a drug-dealing teenager, for instance, would have to show they had no knowledge the kid was using the family car to facilitate drug transactions. Homeowners have to show they were unaware that a resident was keeping drugs on the premises. Anyone holding cash in close proximity to illicit drugs may have to do ent that he earned the money legitimately.


When owners of seized property put up a legal fight (and the majority do not), the cases are almost always heard by judges, not juries. In some states forfeiture claimants don’t even have the right to a jury trial. But even in states where they do, owners tend to waive that right, because jury proceedings are longer and more expensive. Federal forfeiture claimants are technically guaranteed a jury trial under the Seventh Amendment, but can lose the right if they fail to reply in a timely manner to sometimes complicated government notices of seizure.


Federal asset forfeiture law dates back to the Racketeer Influenced and Corrupt Organizations (RICO) Act of 1970, a law aimed at seizing profits earned by organized crime. In 1978 Congress broadened RICO to include drug violations. But it was the Comprehensive Crime Control Act of 1984 that made forfeiture the lucrative, widely used law enforcement tool it is today.


“The Crime Control Act did a few things,” says the Virginia-based defense attorney David Smith, author of the legal treatise Prosecution and Defense of Forfeiture Cases. “First, it corrected some poor drafting in the earlier laws. Second, it created two federal forfeiture funds, one in the Justice Department and one in the Treasury. And most important, it included an earmarking provision that gave forfeiture proceeds back to local law enforcement agencies that helped in a federal forfeiture.”


This last bit was key. “The thinking was that this would motivate police agencies to use the forfeiture provisions,” Smith says. “They were right. It also basically made law enforcement an interest group. They directly benefited from the law. Since it was passed, they’ve fought hard to keep it and strengthen it.”


The 1984 law lowered the bar for civil forfeiture. To seize property, the government had only to show probable cause to believe that it was connected to drug activity, or the same standard cops use to obtain search warrants. The state was allowed to use hearsay evidence—meaning a federal agent could testify that a drug informant told him a car or home was used in a drug transaction—but property owners were barred from using hearsay, and couldn’t even cross-examine some of the government’s witnesses. Informants, while being protected from scrutiny, were incentivized monetarily: According to the law, snitches could receive as much as one-quarter of the bounty, up to $50,000 per case.


According to a 1992 Cato Ins ute study examining the early results of the Comprehensive Crime Control Act, total federal forfeiture revenues increased by 1,500 percent between 1985 and 1991. The Justice Department’s forfeiture fund (which doesn’t include forfeitures from customs agents) jumped from $27 million in 1985 to $644 million in 1991; by 1996 it crossed the $1 billion line, and as of 2008 assets had increased to $3.1 billion. According to the government’s own data, less than 20 percent of federal seizures involved property whose owners were ever prosecuted.


read more...

[Winehole23]

Police gradually came to view asset forfeiture as not just a way to minimize drug profits, or even to fill their own coffers, but as a tool to enforce maximum compliance on non-criminals. In one highly publicized example from the 1990s, Jason Brice nearly lost the motel he had bought and renovated in a high-crime area of Houston. At the request of local authorities, Brice hired private security, allowed police to patrol his property (at some cost to his business), and spent tens of thousands of dollars in other measures to prevent drug activity on the premises. But when local police asked Brice to raise his rates to deter criminals, he refused, saying it would put him out of business. Stepped up police harassment of his customers caused Brice to eventually terminate the agreement that had allowed them la ude on his property. In less than a month, local and federal officials tried to seize Brice’s motel on the grounds that he was aware of drug dealing taking place there. Brice eventually won, but only after an expensive, drawn-out legal battle.

[Winehole23]

On February 4, 2009, Anthony Smelley got his first hearing before an Indiana judge. Smelley’s attorney, David Kenninger, filed a motion asking for summary judgment against the county, citing a letter from a Detroit law firm stating that the seized money indeed came from an accident settlement, not a drug transaction. Kenninger also argued that because there were no drugs in Smelley’s car, the state had failed to show the required “nexus” between the cash and illegal activity. Putnam County Circuit Court Judge Matthew Headley seemed to agree, hitting Christopher Gambill, who represented Putnam County, with some tough questions. That’s when Gambill made an argument that was remarkable even for a forfeiture case.


“You have not alleged that this person was dealing in drugs, right?” Judge Headley said.


“No,” Gambill responded. “We alleged this money was being transported for the purpose of being used to be involved in a drug transaction.”


Incredibly, Gambill was arguing that the county could seize Smelley’s money for a crime that hadn’t yet been committed. Asked in a phone interview to clarify, Gambill stands by the general principle. “I can’t respond specifically to that case,” he says, “but yes, under the state forfeiture statute, we can seize money if we can show that it was intended for use in a drug transaction at a later date.” (Smelley himself refused to be interviewed for this article.)

[Winehole23]

Adjusted for inflation, the Justice Department’s asset forfeiture fund, which includes proceeds from forfeitures carried out by all federal agencies except Immigration and Customs Enforcement, grew from $1.3 billion in 2001 to $3.1 billion in 2008. (The total includes some money left over from previous years, but according to Smith, almost all of the money is doled out to local and federal agencies on an annual basis.) National Public Radio has reported that between 2003 and 2007, the amount of money seized by local law enforcement agencies enrolled in the federal forfeiture program tripled from $567 million to $1.6 billion. That doesn’t include property seized by local law enforcement agencies without involving federal authorities.

[Winehole23]

In 2008 the Bureau of Alcohol, Tobacco, Firearms, and Explosives asked for bids from private contractors on 2,000 Leatherman pocket knives for its agents, to be inscribed with the phrase “Always Think Forfeiture,” a play on the agency’s traditional “ATF” initials. The agency rescinded the order after it was reported in the Idaho Statesman, but critics said it betrayed the ethic of an organization more interested in taking people’s property than in fighting crime.

Some police agencies come to view forfeiture not just as an occasional windfall for buying guns, police cars, or better equipment, but as a source of funding for basic operations. This is especially true with multijurisdictional drug task forces, some of which have become financially independent of the states, counties, and cities in which they operate, thanks to forfeiture and federal anti-drug grants.


In a 2001 study published in the Journal of Criminal Justice, the University of Texas at Dallas criminologist John Worral surveyed 1,400 police departments around the country on their use of forfeiture and the way they incorporated seized assets into their budgets. Worral, who describes himself as agnostic on the issue, concluded that “a substantial proportion of law enforcement agencies are dependent on civil asset forfeiture” and that “forfeiture is coming to be viewed not only as a budgetary supplement, but as a necessary source of income.” Almost half of surveyed police departments with more than 100 law enforcement personnel said forfeiture proceeds were “necessary as a budget supplement” for department operations.

[Winehole23]

Forfeiture may also undermine actual enforcement of the law. In a 1994 study reported in Justice Quarterly, criminologists J. Mitc Miller and Lance H. Selva observed several police agencies that identified drug supplies but delayed making busts to maximize the cash they could seize, since seized cash is more lucrative for police departments than seized drugs. This strategy allowed untold amounts of illicit drugs to be sold and moved into the streets, contrary to the official aims of drug enforcement.

[Winehole23]

In other states, the problem isn’t so much the strict provisions on the books, but rather the relevant law’s ambiguity, which can give police and prosecutors too much leeway. Tiny Tenaha, Texas, population 1,046, made national news in 2008 after a series of reports alleged that the town’s police force was targeting black and Latino motorists along Highway 84, a busy regional artery that connects Houston to Louisiana’s casinos, ensuring a reliable harvest of cash-heavy motorists. The Chicago Tribune reported that in just the three years between 2006 and 2008, Tenaha police stopped 140 drivers and asked them to sign waivers agreeing to hand over their cash, cars, jewelry, and other property to avoid arrest and prosecution on drug charges. If the drivers agreed, police took their property and waved them down the highway. If they refused, even innocent motorists faced months of legal hassles and thousands of dollars in attorney fees, usually amounting to far more than the value of the amount seized. One local attorney found court records of 200 cases in which Tenaha police had seized assets from drivers; only 50 were ever criminally charged.

[Winehole23]

While police departments have been benefiting from forfeiture policies for years, funneling the money to prosecutors raises even more problems. “Police merely seize the property,” David Smith says. “They don’t determine which cases go forward. It’s a violation of due process if the prosecutor, the person actually deciding whether or not to bring a forfeiture case, benefits somehow from the decision. You can’t have the same person deciding which cases to take also directly benefiting from those cases.”

[Winehole23]

http://www.huffingtonpost.com/2012/0...n_1522328.html

[Capt Bringdown]

Corruption and abuse of power that rivals or exceeds what you'd find in the 3rd world.

[boutons_deux]

more out-of-control, no-oversight orgs where the politicians won't touch them, rather even plump them up with $100Ms of military hardware. unstoppable.

other police news:

Police 'Set Up' NATO Firebomb Trio

http://readersupportednews.org/news-...-firebomb-trio

NY Daily News Defends NYPD's 'Stop-And-Frisk' Policy, Warns 'The Body Count Will Start Rising'

http://mediamatters.org/blog/2012051...=Google+Reader


"The Whole System Relies on These Arrests": The NYPD's Racist Marijuana Arrest Crusade And Its National Implications

http://www.alternet.org/module/printversion/155439



The PIC is unstoppably metastasizing.

[Winehole23]

the militarization of LE is troubling on many levels

[TDMVPDPOY]

welcome to communism, whats urs is mine, whats mine is mine...that is if u belong in the party

[boutons_deux]

More PIC misconduct:

Registry tallies over 2,000 wrongful convictions since 1989

More than 2,000 people have been freed from prison since 1989 after they were found to have been wrongly convicted of serious crimes,

the criminal justice system sometimes misfires, prosecuting and convicting the innocent

"Nobody had an inkling of the serious problem of false confessions until we had this data,"

"It's clear that the exonerations we found are the tip of the iceberg,"

"Obviously there are false convictions in those [other] counties. We just don't know about them"




http://mobile.latimes.com/p.p?m=b&a=...%3D0%26DPL%3D3

========

"misfires"?

GMAFB

It's corrupt ing police, prosecutors, judges pumping up the profits of for-profit prisons.

[Wild Cobra]

welcome to communism, whats urs is mine, whats mine is mine...that is if u belong in the party

But the cart is already too full, and we don't have enough people pulling it.

[boutons_deux]

great analogy, a nation full of cart pullers, indebted rent payers, and wage slaves. America the Beautiful (for the 1%)

[RandomGuy]

Why can't the libertarians and Ron Paul nuts get on this?

If ever there was somethign to be genuinely pissed about, it would be this issue, It percolates like a rancid pool of vomit in the alley of our national consciousness. We try and pretend it isn't there, and that only the "bad people" get caught up in it.

[boutons_deux]

tea baggers and libertarians are really, in effect, shilling for the 1% and Repugs.

[vy65]

tried looking but couldn't find any challenges to the '84 act based on the due process clause. seems that somebody should have tried by now to argue that the lower standard of proof along with the changed evidentiary rules and court costs were uncons utional deprivations of property under the 5th/14th amendments.

[DarkReign]

tried looking but couldn't find any challenges to the '84 act based on the due process clause. seems that somebody should have tried by now to argue that the lower standard of proof along with the changed evidentiary rules and court costs were uncons utional deprivations of property under the 5th/14th amendments.

Sounds like you got a case. Do a barrel roll!

[Winehole23]

Federal Asset Forfeiture Continues to Skyrocket Under Obama

Mike Riggs|Jul. 31, 2012 1:34 pm


The Justice Department's asset forfeiture fund under President Obama is the largest it's ever been, having grown from $500 million in 2003, to $1.8 billion in 2011, according to a new report from the GAO.



In addition to the fund's size, payments from the fund to local law enforcement agencies totalled $445 million in 2011, another all-time high. These payouts are part of the DOJ's "equitable sharing agreement," which incentivizes local cops to conduct federal raids. They then get a portion of the assets seized during the raid (more money if they contribute more resources). That money is then used to finance SWAT and paramilitary training, as well as the acquisition of military grade weapons and equipment.




While the report doesn't specify the payout from particular investigations, it's likely that in California, which received $80 million in 2011--or 18 percent of all shared asset forfeiture funds given to local and state law enforcement last year--much of the money came from assets seized during raids on medical marijuana dispensaries. (For more on equitable sharing, and the abuses it leads to, read the Insitute for Justice report "Policing for Profit.")



More noteworthy even than the payout numbers to local and state cops is that the cost of maintaining the asset forfeiture fund has skyrocketed.


In 2008, the last year of the George W. Bush administration, the cost of operating the asset forfeiture fund totalled $409 million. In 2009, the first year of the Obama administration, that number jumped to $512 million. The next year, operating the fund cost $569 million. In 2011, operating the fund cost $491 million.



Where does that money go? According to the GAO report, "Cost drivers include salaries for government employees, information systems costs, asset management and disposal contracts, and contracts for administrative support staff, among other things."


Federal law allows for two different types of asset forfeiture. The GAO describes them as such:

Judicial forfeiture, both civil and criminal, is the process by which property may be forfeited to the United States by filing a forfeiture action in federal court. In civil forfeiture, the action is against the property and thus does not require that the owner of the property be charged with a federal offense. The government must only prove a connection between the property and the crime. By contrast, criminal forfeiture requires a conviction of the defendant before property is subject to forfeiture.

In many states there are limitations to what local law enforcement agencies can seize without seeking a conviction, which is why they often invite the feds to "adopt" their investigations, particularly drug investigations, in order to seize assets without actually charging anyone, or winning a case. (The IJ report linked above explores this loophole in horrifying detail.)



Here's a list of the largest asset recipient states in 2011:

California cops received $79 million
New York cops received $48 million
Florida cops received $38 million
Texas cops received $31 million
Georgia cops received $30 million
Illinois cops received $16.9 million
Michigan cops received $12.8 million
North Carolina cops received $10 million
Ohio cops received $9.9 million

The report also says that more state legislatures are adopting broader asset forfeiture laws, reducing the need for joint operations with federal law enforcement.


"In 2003, adoptions made up about 23 percent of all equitable sharing payments, while in 2010, adoptions made up about 17 percent of all equitable sharing payments," the report reads."According to DOJ, as more states have established their own forfeiture laws, they may rely less on DOJ to adopt forfeiture cases and may instead pursue forfeitures under state law when appropriate."
If Obama's crackdown on state-legal medical marijuana in California, or the DOJ-led raids of head shops across the Midwest, or the attacks on pharmacies in the Southeast, are any indicator, 2012 will be another banner year for the federal asset forfeiture fund.

http://reason.com/blog/2012/07/31/fe...kyrockets-unde

[Clipper Nation]

Why can't the libertarians and Ron Paul nuts get on this?

If ever there was somethign to be genuinely pissed about, it would be this issue, It percolates like a rancid pool of vomit in the alley of our national consciousness. We try and pretend it isn't there, and that only the "bad people" get caught up in it.

This is exactly the type of we're talking about when we mention the police state, tbh..... when the people voluntarily give up their liberty for temporary safety out of fear, this is what happens.....

tea baggers and libertarians are really, in effect, shilling for the 1% and Repugs.

You are truly delusional if you actually think libertarians shill for a neocon party that they have nothing in common with, who tries to marginalize us...

[Winehole23]

the boutons method is to run everyone who disagrees with him into the same ditch and piss on them

[Winehole23]

it's not peculiar to boutons, but it is the only trick in his book.

[boutons_deux]

no, tea baggers and libertarians definitely want less regulation, less govt, which is EXACTLY what the financial and the UCA wants, so the tea baggers and libertarians are perfectly aligned with the UCA in those matters.