Current Events

Compare and contrast

Sarah Stillman in the New Yorker on civil asset forfeiture.

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.”

The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime. In Tulsa, Oklahoma, cops drive a Cadillac Escalade stencilled with the words “this used to be a drug dealer’s car, now it’s ours!” In Monroe, North Carolina, police recently proposed using forty-four thousand dollars in confiscated drug money to buy a surveillance drone, which might be deployed to catch fleeing suspects, conduct rescue missions, and, perhaps, seize more drug money.

[Read the whole thing.]

Charles Tilly, “War-Making and State-Making as Organized Crime.” [The link goes to a worming paper version; I can’t immediately see a legal-looking scan of the published version.]

Seems to me that American civil asset forfeiture law makes the shakedown-racket feature of government resource extraction… unusually explicit and visible.

  • Les Kyle Nearhood

    This is not one of those things that once had a noble purpose and was corrupted. This was meant from the very beginning as a way to steal money. I remember back in the 1980’s when the civil asset law passed. Two police friends of mine talked about the elaborate plans that their department had already cooked up to get new cars. The act was later “reformed” in 2000 but the reforms did not amount to much.

    • Sean II

      One thing to add here is that, for any given scam, we must try to draw a line between the witting and the unwitting participants.

      Small town police departments are usually quite self-aware when it comes to asset forfeiture. They brag openly about seizing this to buy that, in language any pirate would understand. They advertise notable hauls in the local paper, etc. Same goes for big city police bosses and bureaucrats. They know what they’re doing, and understand it in explicitly financial terms.

      Everyone else is confused on some level, including the big city street cops (who, like most public employees, never think about where their money comes from in the first place).

      It’s hard to explain to anyone who wasn’t around at the time, but the 1980s moral panic over street drugs was very real. People believed that shit. Worse than the 90s panic about “internet predators”, worse than the 2000s panic about Taliban sleeper cells in the local Kiwanis Club. The words “drug dealer” worked like magic to dehumanize anyone to whom they were applied. Obligatory cultural artifact: check out Lethal Weapon II. There’s a scene where Murtagh is briefly tempted by a stack of “drug money”, before he comes to his senses and throws the cash from his hand like it was dipped in smallpox. A bunch of other movies from that time featured scenes where a dealer’s money was ritualistically set on fire.

      The point being: like many hideous statist things, asset forfeiture is part mustache-twirling public choice, and part…people are medieval idiots just waiting for the chance to gang up on a folk demon.

  • Mark Rothschild

    Well worth reading Sarah’s entire article.

    The bureaucratic state conceives of civil forfeiture as an all-you-can-eat banquet and your property is on the menu.

    The abuses that Sarah’s important article illustrates might prompt a few
    questions about what the Constitution actually does protect.

    The Constitution’s Eighth Amendment prohibition against “excessive fines” can’t protect us against government seizure of our personal property.

    Here’s why. There has never been a clear judicial definition of “excessiveness”. The problem with constraining civil forfeiture by an “excessiveness” or due process standard is that Congress or any state legislature can craft a civil forfeiture law that will meet these standards as long as the law spells out precisely the triggering offences and the amounts to be forfeit.

    It would have been helpful if the Constitution had prohibited fines of
    property and required that fines be specified as an amount of money . If that
    had been the case today, then the actions described would not be “abuses”, they would simply be illegal.

    Alas, we have to regard the Constitution as it is, rather than as it might
    have been, but we might profitably focus on the following.

    Virtually all the “abuses” of civil forfeiture are related to victimless crimes. Virtually all of the “abuses” of police “stop and frisk” are related to the criminalization of personal behavior that harms no one.

    The one weakness of Sarah’s article is her emphasis on the 14th Amendment
    as a principle argument against this abuse of police power. The problem with
    relying on the 14th Amendment to protect property rights is that if civil
    forfeiture (or stop and frisk policies) are applied in a color-blind way then
    anything goes.

    Most abuse of state police power is exercised to detect and regulate personal behavior that harms no one.

  • RobW

    I read this article last week and I suddenly realized that I must be a libertarian because this article astounded and offended me deeply, and it seems only libertarians feel similarly. The government can take my property based on a lose standard of suspicion that it was connected to criminal activity that I have never been convicted of, or in many, many cases, never even charged with? How is this not an enormous scandal? How can this even exist in America?

    • j r

      The government is what the people (a term loosely construed) want it to be. For a certain period of time, the people wanted the government to be Charles Bronson.

      • Libertymike

        In other words, the people wanted a death wish.

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