This Week’s Civil Forfeiture Outrage (Seventh in a Series)

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I’m happy to report that I’ve discovered no new civil forfeiture outrages this week. Instead, I’ll write about two civil forfeiture outrages that are a couple of weeks old.

Last week I wrote about a curious case of cash confiscation at the Dallas Love Field Airport, in which a woman carrying a large amount of currency—over $100,000—had all of it seized by the Dallas Police Department (DPD), even though she was never arrested.

One part of the story that I didn’t previously mention was this claim in a follow-up article from the local CBS affiliate: “A DPD spokesperson also alleged that travelers are not allowed to board a plane with more than $10,000 of cash without declaring it, even on domestic flights.”

I want to say this as politely as possible: What the DPD spokesperson is saying isn’t true.

There is no law at all—no case, no statute, and no rule whatsoever—that prevents anyone in the United States from traveling or boarding a plane while carrying any amount of cash. (Federal law requires the disclosure of how much money you are carrying in certain circumstances when you cross national borders, but that’s not relevant to this case; no border-crossing was involved here.)

Whenever a law enforcement spokesperson says something that’s fundamentally false, that is cause for concern. However, because of the unique relationship between civil asset forfeiture law and law enforcement—that is, because law enforcement offices are sometimes allowed to take the property they seize, such as cash, and then roll it into their own law enforcement budget—this kind of misrepresentation is especially troubling.

Most people understand the potential for conflict of interest when law enforcement officers get compensated on a piecework basis for every result they create. Presumably, you wouldn’t want to give traffic police a cash bonus for every speeding ticket they write; think of the consequences! That’s why this DPD error was especially notable—and that’s why some related news out of Indiana last month was especially eyebrow-raising.

Indiana is the only state in the Union that privatizes its civil asset forfeiture enforcement. Indiana doesn’t use publicly accountable government agents to do forfeiture work; instead, it deputizes private attorneys and pays them on a contingency-fee basis. The private prosecutor gets paid only when the property is seized – thus creating an incentive to seek private gain. One Indiana prosecutor defended this practice by explaining that a private prosecutor “doesn’t get paid unless the state gets paid, so obviously he’s motivated to do the best job he can.” Those who appreciate the dangers of such a system will appreciate that this compensation structure isn’t a feature—it’s a bug.

Some aspects of the Indiana forfeiture system, which was written into statute in 2018, should shock the conscience of those who value good government. County prosecuting attorneys are allowed to hire other attorneys to bring forfeiture suits, but the hired attorney must not be a public prosecutor. The hired lawyer can be compensated only on a contingency-fee basis. Some of these contingency-fee private prosecutors are also allowed to serve simultaneously as civil-forfeiture defense attorneys in neighboring counties. Such prohibitions almost seem designed to create conflicts of interest.

At least one other state has experimented with privatized forfeiture in the past, but Indiana is now the sole offender. Earlier this century, Georgia allowed private lawyers to profit by the Indiana-style contingency-fee forfeiture mechanism. However, in 2012, a Georgia appellate court found that those arrangements were “repugnant” and “void as against Georgia public policy” precisely because they gave private attorneys a financial stake in public outcomes.

In any event, the news out of Indiana wasn’t all bad. Last month, the Institute for Justice announced that it was filing a class-action lawsuit against the Indiana prosecutors who have privatized this part of the justice system. I’m all for the privatization of government functions when the private sector is best suited to take them on—but this part of the criminal justice system, when coupled with these incentives, simply isn’t a good candidate for privatization. There is a famous passage in the Supreme Court’s Berger v. U.S. (1935) decision that alludes to proper (and improper) motivations of prosecutors generally, and anyone interested in questions of prosecutorial administration would do well to read it:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

The logic of Berger v. U.S. suggests that prosecutorial duties cannot properly be hired out unless attention is paid to the ethical guardrails that prosecutorial service creates. A system in which private prosecutors are paid on a piecework basis, like bounty hunters, is probably missing those guardrails.