Taking people’s stuff: Civil forfeiture is widespread, unjust, and resists reform

Civil forfeiture is a deeply unfair practice in which government agents take and keep billions of dollars of personal property every year – usually without any hard evidence of wrongdoing. The advocates of civil forfeiture regularly attempt to justify it to the public by making insupportable and groundless arguments. To correct the record, I have just produced the second edition of Five Myths of Civil Forfeiture.

This edition contains new, updated data that shows how law enforcement officials take property from people through civil forfeiture – based only on the suspicion of criminal conduct. The victims of civil forfeiture often never come before a judge. In fact, they often never see the inside of a courtroom. Civil forfeiture is an unpopular practice that offends a basic sense of justice.

The new edition of Five Myths of Civil Forfeiture reveals that, although time has passed, we have seen very little progress. The cops keep on taking cash and other valuable property from everyday citizens who are never found guilty of misconduct. Why don’t things change? Why don’t public officials stop this troubling practice? There are several reasons. They are interconnected.

The problem of civil forfeiture is really just an echo of a famous problem of political science: the problem of special-interest groups. The problem of special-interest groups, in a sentence, is that a relatively small number of well-organized people can regularly get legislatures to make decisions that are not supported by majorities and not in the public interest.

The interest group that drives decision-making about civil forfeiture is often the law enforcement community – that is, a coalition of cops and prosecutors. This group serves the public, so it’s surprising that it might ever work against the public interest. In fact, however, this interest group has an interest of its own: the preservation and expansion of the revenue stream that produces public safety paychecks.

Speaking generally, public employees receive their budgets because of the decisions of legislatures. That is: typically all units of government go before a legislative body, they explain the work that they do, and they ask the legislative body to fund their budget. Making these decisions is a legislature’s central task: they’re supposed to spend taxpayer dollars wisely by ensuring that funds go to their highest and best use. This is the way it’s supposed to work in federal, state, and local governments: legislative officials are supposed to set budget priorities and, if needed, make hard decisions.

But, when it comes to cops and prosecutors, that’s often untrue. With respect to significant parts of their budgets, the law enforcement community doesn’t have to deal with the legislature at all. That’s because, if the law enforcement community needs more money in its budget, one option is just to take it through civil forfeiture.

And as I explain in Five Myths of Civil Forfeiture, it’s unusual that they give it back once they seize it: that’s because the money that is seized is often too small to contest in court – often because hiring a lawyer to get one’s own money back would be so expensive that it would make the pursuit of one’s own property a waste of time and resources. This works out pretty well for leaders of the law enforcement community, who don’t have to go before the legislature rattling a tin cup; they can increase their own budgets without lobbying at all.

Sometimes it works out pretty well for legislative officials as well. That’s because some elected officials don’t really want to do their jobs. Making budget choices – how many dollars should go to roads and libraries, and how many dollars will have to be produced by taxes – can be deeply painful. If budget officials can ease the pressures of their jobs and avoid hard choices by allowing an alternate revenue stream that doesn’t require tax or budget decisions, some public officials will see this as a plus.

Seizure and forfeiture thereby become valuable tools for the law enforcement community in multiple respects. Maybe that’s why – whenever reforms in civil forfeiture are considered by legislatures – you regularly see a row of badges in legislative committee rooms. Almost inevitably, a law enforcement representative will pipe up to explain that civil forfeiture is an extraordinarily important and valuable anti-crime measure, and that any reforms to the procedure would create huge social costs and would be soft on crime. My own view is that, when you hear this kind of rhetoric from the law enforcement community, it’s important to remember that other motives may be in play.

I appreciate that it’s very bad manners to suggest that self-interest ever drives what public officials do. It’s especially impolite to suggest that public servants who lobby the legislature on matters that affect their own work might ever be affected by self-interest. But even though it’s bad manners to talk about these possibilities, the presence of rudeness doesn’t change the existence of self-interest.

What will change the nature of civil forfeiture? Maybe more people will get more upset about it: maybe more people will realize that, as the old song goes, it could happen to you. Maybe more budget officials will realize that – as long as the law enforcement community is getting paid with money that doesn’t go through a normal, constitutional appropriations process – then those budget officials are fundamentally failing to do their jobs. But until one of these things happens, I worry that civil forfeiture will continue to snowball through innocent people’s lives.