Op-Ed: Close the federal loophole that lets cops go treasure hunting
“We thought America was the best in the world.” “This can’t be happening.” That’s how Saw Marvellous Soe and Eh Wah described their astonishment after police seized more than $53,000 in cash from Eh Wah’s car in Muskogee, Okla., in February.
Eh Wah is tour manager for a Christian rock band led by Marvellous that played in 19 U.S. cities, raising money from concerts to support an orphanage in Thailand and a Christian college in Burma. Worthy causes, no doubt. But when law enforcement found the cash during a routine traffic stop, a little-known legal process known as “civil asset forfeiture” allowed police officers to seize it, and whatever other property they wanted, without having to prove that Eh Wah was guilty of a crime.
“Drug proceeds,” the officer wrote on the property receipt, even though no weapons, no drugs or even drug paraphernalia were found.
Stories such as this one happen all the time.
Civil asset forfeiture allows police to seize property as long as they believe that the assets in question were somehow connected to criminal activity.
“As long as they believe” — that’s the key part.
Authorities don’t have to actually prove the person was guilty of a crime. They don’t have to even file charges. The presumption of innocence is thrown to the wayside.
It’s an egregious violation of the 4th Amendment, but that’s not even the most glaring problem with the system.
Under current law, most states allow police departments to absorb up to 100% of the value of the confiscated property — whether it’s cash, cars, houses or guns — and use the proceeds to pad their budgets. It’s an obvious conflict of interest — and boy, is it profitable for law enforcement agencies.
Authorities don’t have to actually prove the person was guilty of a crime. They don’t have to even file charges.
In 2014, the latest year for which data is available, police officers took more property from American citizens under civil asset forfeiture ($5 billion) than criminals took in burglaries ($3.5 billion), according to research from the Institute for Justice.
Granted, there’s a lot of nuance to these statistics. The numbers don’t include state seizures — just federal seizures — and they exclude other types of theft, such as larceny. But the central point here remains: Civil asset forfeiture is dangerously profitable, prompting civic leaders, lawmakers and state legislatures to consider significant reform.
In 1994, California attempted to rein in civil asset forfeiture abuse, passing a bill that requires a criminal conviction before police can seize assets worth up to $25,000, and that caps the amount of money authorities can keep at no more than 65% of the total.
But unless Congress takes action, state efforts to stop civil forfeiture abuse mean very little.
A program run by the Department of Justice known as “equitable sharing” in effect allows state and local police to circumvent state restrictions on civil forfeiture. Through “equitable sharing,” local police departments can seize assets under federal, rather than state, law and keep 80% of the proceeds. (The Justice Department gets the rest.)
It should come as no surprise that in states that have implemented caps and limits, law enforcement simply relies on the federal program instead.
In 2015, the Drug Policy Alliance found that whereas revenue collected under California’s forfeiture laws had remained constant over the previous 10 years, revenue under the federal program had more than tripled.
As more and more states reconsider their civil forfeiture systems, the federal government needs to set a framework for smart reform. That starts with closing the equitable-sharing loophole, and requiring police to satisfy a higher burden of proof to a judge before seizing property under federal law.
Police of course need the ability to seize and protect property as evidence for trial. But the current system — which allows police to go treasure hunting, beefing up their budgets on the backs of innocent Americans — stands in stark contrast to constitutional principles of due process and property rights.
Darrell Issa is a Senior Member of the House Judiciary Committee and the U.S. Representative for California’s 49th Congressional District.
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