When the Cops Seize Your Stuff: Does Civil Asset Forfeiture Really Go too Far?

By Rachel Alexander Published on September 11, 2015

Oklahoma has been in the news lately over law enforcement seizing assets from people who were never eventually charged with a crime. In 12 counties, authorities seized $4 million in cash from 114 of these people over a five-year span. The ACLU claims this is evidence of abuse, but what is really going on?

Seizing property without charging someone with a crime is known as “civil forfeiture,” and it is perfectly legal and has been upheld by the U.S. Supreme Court. In the cases where cash is seized, most of the incidents involve law enforcement pulling drivers over who they believe are trafficking narcotics, and discovering large amounts of cash in the vehicle. If the officer believes the person obtained the cash from illegal activity, he will seize it. The property is held until a judge can make a ruling on whether the seizure was lawful.

The reason these laws are in place is to prevent the person from using the large amount of cash (or property) to commit more crimes, such as buying and selling more drugs. The ACLU explains that forfeiture “was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources.” Other types of property Oklahoma law enforcement has seized include vehicles, firearms, iPhones and a computer. The vast majority of those who were eventually charged criminally were for drug dealing related crimes (many were pled down to lesser offenses like drug possession).

Law enforcement genuinely made a mistake in two of the incidents. In one case, they simply had the wrong address. In the other case, they incorrectly thought a drunk driver with a large number of prescription drugs and a huge stash of cash was a drug dealer. It can be a hassle to get property back after it’s been seized.

In the other cases where no crime was charged, the ACLU doesn’t include the specifics, so it’s impossible to analyze what happened. Instead, the ACLU seems to be insinuating that the police must be corrupt and greedy.

It is true that law enforcement and district attorneys use the seized assets to help fund their agencies. The libertarian Cato Institute derisively refers to it as “Policing for Profit.” If drugs were legalized as libertarians want, the need for civil asset forfeiture would vanish. The reality is, sometimes district attorneys decide not to bring charges for many reasons, not just because someone isn’t guilty. Some cases would cost so much to prosecute that it’s not worth it to the taxpayers. Other cases have strong evidence, except one of the key witnesses is shady, which will taint a jury no matter what the rest of the evidence is. Still in other cases, a defendant is allowed to pay a fine or civil penalty instead, perhaps because it was their first offense. In recent years, civil forfeitures have increasingly targeted drug dealers. Since prosecutors frequently look the other way at drug crimes, this would explain why charges aren’t filed in many cases.

It is telling that the ACLU never provides this full explanation. Why not? Shouldn’t people have all the facts before they make a decision? And if the police are really corrupt, why isn’t the ACLU calling for a criminal investigation of law enforcement in the 12 Oklahoma counties?

Sen. Kyle Loveless, R-Oklahoma City, has authored a bill to rein in the ability of law enforcement to seize assets. It would be good if the final version of the bill enhanced transparency requirements, including releasing descriptions of those who lost their property due to seizure who were not charged criminally. If there are privacy implications, names and specific details could be redacted, but this exception calls for clear policy guidelines for determining such instances.

One way civil asset forfeiture might be reined in is by restricting when and how the seized cash can be spent. When I was a deputy county attorney at the Maricopa County Attorney’s Office, I discovered that the county attorney before my tenure had diverted these kinds of assets to programs like “midnight basketball.” Ostensibly, the purpose was to keep youth off the streets and away from crime and substance abuse, but there was scant evidence the program worked and may have just been a payout to a friend of the county attorney who ran the program.

So, there are modest steps that could be taken to minimize civil asset forfeiture abuse. But it is premature to change the law to require criminal convictions in order to seize property. It sounds good in theory, and maybe ultimately it is the right course of action, especially considering how the government all too often targets those it doesn’t like. But at the moment, it’s worth taking a breath and asking ourselves: If it’s such a widespread problem, why aren’t proponents providing information on those whose property was seized but who were not charged with crimes?

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  • sc_cannon

    It is interesting that cops are basically in the protection business, when it is not official cops doing the protection it is called the protection racket. Since they are at the top cops are basically the thugiest of the people offering protection

  • R.C. Smith

    Not really hard to understand:

    Fourth Amendment

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Fifth Amendment

    No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

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