Pubdate: Mon, 06 Mar 2017
Source: Wall Street Journal (US)
Copyright: 2017 Dow Jones & Company, Inc.
Authors: Lee McGrath and Nick Sibilla


America's sheriffs have given President Trump a woefully inaccurate
view of civil asset forfeiture-the process through which police seize,
and prosecutors literally sue, cash, cars and real estate that they
suspect may be connected to a crime. "People want to say we're taking
money and without due process. That's not true," a Kentucky sheriff
told the president last month at a White House meeting. Critics of
forfeiture, the sheriff added, simply "make up stories."

In fact, thousands of Americans have had their assets taken without
ever being charged with a crime, let alone convicted. Russ Caswell
almost lost his Massachusetts motel, which had been run by his family
for more than 50 years, because of 15 "drug-related incidents" there
from 1994-2008, a period through which he rented out nearly 200,000

Maryland dairy farmer Randy Sowers had his entire bank account-roughly
$60,000-seized by the IRS, which accused him of running afoul of
reporting requirements for cash deposits. Mandrel Stuart had $17,550
in receipts from his Virginia barbecue restaurant confiscated during a
routine traffic stop. A manager of a Christian rock band had $53,000
in cash-profits from concerts and donations intended for an orphanage
in Thailand-seized in Oklahoma after being stopped for a broken
taillight. All of the property in these outrageous cases was
eventually returned, but only after an arduous process.

This kind of abuse has united reformers on all sides of the political
debate: progressives, conservatives, independents, even a few former
drug warriors. Since 2014 nearly 20 states and the District of
Columbia have enacted laws limiting asset forfeiture or increasing
transparency. Nearly 20 other states are considering similar
legislation. Last week a reform bill passed the Indiana Senate 40-10.
It would require a criminal conviction before a court can declare a
person's assets forfeited.

Another good step for state and federal legislators would be to bar
agencies from keeping the money they seize. Today more than 40 states
and the federal government permit law-enforcement agencies to retain
anywhere from 45% to 100% of forfeiture proceeds. As a result,
forfeiture has practically become an industry.

The Institute for Justice, where we work, has obtained data on asset
forfeiture across 14 states, including California, Texas and New York.
Between 2002 and 2013, the revenue from forfeiture more than doubled,
from $107 million to $250 million. Federal confiscations have risen
even faster. In 1986 the Justice Department's Assets Forfeiture Fund
collected $93.7 million. In 2014 the number was $4.5 billion.

Allowing police and prosecutors to keep part of what they confiscate
gives them an incentive to target cash instead of criminals. In 2011 a
Nashville TV news station investigated seizures on nearby interstate
highways. Drugs usually came in on the eastbound lanes, while the
money would flow out on the westbound lanes. The reporters found that
police made "10 times as many stops on the money side." They were less
focused on stopping the drugs than on grabbing the cash.

Or consider a program under the Drug Enforcement Administration for
paying confidential sources, the subject of a blistering federal audit
last fall. An informant who provides intelligence resulting in
forfeiture can receive as much as 25% of the confiscated property's
value-up to $500,000. The audit examined nine DEA informants in the
parcel industry who offered tips in 205 cases. That led to $5.8
million in seizures and $1.2 million in payments to sources, but only
a single confiscation of an illegal substance.

To prevent these abuses, lawmakers in Alaska, Connecticut, North
Dakota and Texas have sponsored legislation that would send
confiscated proceeds directly to the general fund of the state or
county. Similar measures in Arizona and Hawaii would restrict
forfeiture proceeds to being used to compensate crime victims and
their families.

Yet sometimes police circumvent state restrictions by routing
forfeitures through a federal program known as "equitable sharing." By
cooperating with the feds they can seize property for forfeiture under
federal law, and then receive a cut-up to 80% of the proceeds. From
2001-14 nearly 62,000 people had $2.5 billion confiscated under
equitable sharing, according to the Washington Post. All of those
seizures occurred "without search warrants or indictments."

Fortunately, states are now closing this loophole, too. Last fall
California Gov. Jerry Brown signed a bill that, in most cases,
requires a criminal conviction before any California agency can
receive equitable-sharing proceeds. In January Ohio Gov. John Kasich
approved legislation to ban his state's police and prosecutors from
transferring seized property to federal agencies unless its value is
more than $100,000. Similar reforms have been introduced in Colorado,
New Hampshire and a handful of other states.

Interest in stopping civil forfeiture has never been greater, and it
isn't based on fables. We hope Mr. Trump will take a fresh look and
seize the opportunity to defend American property rights-and return
law enforcement's focus to prosecuting criminals.

Mr. McGrath is senior legislative counsel and Mr. Sibilla is a
communications associate at the Institute for Justice.
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