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Civil Asset Forfeiture Primer Shows Potential for Reform in Texas

| January 8, 2015

In the past week the Center for Effective Justice at the Texas Public Policy Foundation had a Civil Asset Forfeiture Primer at the Capitol, where they assembled a panel of policy makers, legislators, and authorities to give their expert opinions on the matter and to take questions from the audience. Andrew Kloster, a legal fellow from the Heritage Foundation that focuses on civil rights issues was present, along with Matt Miller from the Institute of Justice where he fights for property rights. They were joined by Shannon Edmonds from the Texas District and County Attorneys Association and Texas State Representative David Simpson. The Center for Effective Justice’s Derek Cohen moderated.

Mr. Cohen began by giving the audience background into the issue of civil asset forfeiture. He mentioned that the idea of forfeiture goes as far back as the Roman Empire and has continued on through out the ages before becoming a bone of contention between England and its colonies before and during the American Revolution. He summed up the issue currently in the terms that it has been referred to by media from all sides. Some look at civil asset forfeiture as an “indispensable tool” for law enforcement and prosecutors while others see it as “policing for profit” and “a sustained assault on the Fifth Amendment and due process.”

The speakers eagerly discussed the topic. Andrew Kloster began by delving deeper into the reasoning behind the creation of civil asset forfeiture in the American system and how that has devolved today into an abused mechanism in modern day law enforcement.  Shannon Edmonds also chimed in clarifying that civil asset forfeiture was intended to make sure that the proceeds of crime didn’t end right back in the pockets of criminals.

But all agreed that the current situation has resulted in spectacular abuses. Families threatened with the removal of their children, owners of small businesses losing their assets, and case after case of small funds and property taken bit by bit from innocent and often helpless citizens. The money is usually enough to make it worth taking, but not enough to justify the legal expense involved in getting it back, leaving most people without representation or due process.

Both Kloster and Miller spoke of the incentive structures that are present in the current system. When law enforcement is making decisions about whether or not they seize assets, they are making decisions about whether or not their office receives that much more funding. It was made clear that the worry about the incentive structure is not because police and prosecutors are bad people, but that they are having temptation thrown very subtly in their way and that it would be better for them and the public to restructure the system.

Miller spoke of several possible ways to address the problem. The first was an outright ban on civil asset forfeiture. States such as North Carolina and Minnesota have either removed the practice or limited it enough to make it obsolete. This would be a more difficult option, with opposition from several lobbies. But short of that, there are several options. A requirement that the funds not go directly to law enforcement or prosecutors’ offices is a step in the right direction, removing the incentive that they have to increase the seizures. Another change that is needed urgently is to ensure that there is due process to the citizens being threatened under this practice. The burden of proof needs to be one the state instead of the citizen, giving those who have no representation a fighting chance at recovering their property. A third option is to have better reporting by the benefiting office about where the funds are coming from, what form they are being obtained in, and information about what happens in hearings, for example, whether or not the individual had representation.

Finally, almost all of the speakers referenced equitable sharing, an arrangement where law enforcement realizes that they are constrained by local laws, perhaps the asset in question isn’t on the list of seizable items, and they then alert and involve federal enforcement and prosecutors to the situation. These groups, operating on different guidelines, then seize the assets and provide the alerting authorities with a percentage of the profits. Matt Miller strongly recommended limiting or eliminating this practice.

Shannon Edmonds argued in favor of retaining the practice. While not disputing that there had been cases of misuse that should be cause for concern, he also believed that the funds procured by the practice were necessary for the continued operation of law enforcement. Quoting Latin, he argued that “misuse of something does not render it useless”.

The audience seemed largely unswayed by his statements, addressing most of their questions to him. They embodied a growing desire in the state to put an end to the practice that exposes every citizen to threat of seizure. The upcoming session provides an opportunity for legislators to make a change.

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