District Attorney Todd Risberg got it right. Asked about the idea of government confiscation of property connected to crime, Risberg expressed concern about how it affects the innocent. “I’m not sure it’s appropriate to take the family car away from the wife and kids when that’s all they’re going to have left after their husband or father goes away (to prison),” he said.
He is absolutely right. But there is more to it than that. Funding law enforcement efforts through forfeitures, even partially or tangentially, adds an inappropriate incentive that risks distorting, even corrupting, the entire legal system. How and when police power is applied should be a matter of law and public policy. It should never be influenced by the prospect of profit.
Even when done right, law enforcement can be problematic. Well-documented excesses are reflected in the “war on drugs.” Over-crowded prisons, draconian sentencing and a grotesquely out-sized prison population are all examples. And, as with forfeiture cases, minorities are vastly overrepresented.
Adding an incentive can only make things worse. But that is exactly what has occurred with the enactment of civil forfeiture laws. As detailed in a lengthy article in The New Yorker, “civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.”
In other words, in many states and nationwide under federal law, a person’s property – money, jewelry, car, gun, house, whatever – can be seized by the government merely because that property was in some official’s mind somehow associated with suspected wrongdoing. It is not necessary for the person in question to be convicted or even charged with a crime.
In part, this is done under the legal notion that a thing is not a person and therefore has no rights. As The New Yorker reports, this has led to some bizarre cases such as The United States vs. One Pearl Necklace or State of Texas vs. $6,037.
The effect on real people, however, is neither silly not amusing. The New Yorker cites several examples.
There is the Texas couple and their child who were pulled over for no discernible reason in a town that has become notorious for forfeiture cases. The couple were in route to visit a parent and buy a used car. The cash they had on hand was deemed reason enough to presume drug trafficking and money laundering. But rather than charge them with either crime – or take their child, as had been threatened – the local authorities let them go free on the condition they signed over the money.
There is also the case of the Washington, D.C., woman whose multiple cleaning jobs made her car a necessity. Nonetheless, it took the Public Defender Service, months and all her money to win the release of her car after her son was caught driving it while in possession of a gun.
Authorities in Philadelphia tried to seize a couple’s home of more than 50 years after their son, unbeknownst to them, sold an informant $40 worth of marijuana. The couple was charge with no crime, but faced forfeiture nonetheless.
Are these extreme examples? Of course, but the point is not that every agency or official is corrupt or venal. The problem is that forfeiture laws allow those that are crooked to flourish and offer incentives to those that are not to become so.
That could be nothing more than a subtle inclination to focus on a certain type of case or crime. But it is a distortion nonetheless. Funding law enforcement by way of forfeitures introduces an influence that simply has no place in government.