Highway Robbery: Policing for Profit through Civil Forfeiture By: Nikki Skolnekovich

Highway Robbery: Policing for Profit through Civil Forfeiture

By: Nikki Skolnekovich

“Highway robbery” is how an attorney at the ACLU Racial Justice Program described the civil forfeiture that occurred in Tenaha, Texas.[1] There, the local police department would habitually stop motorists on Highway 59, search their vehicles, and confiscate any cash found in the vehicle based on no evidence of wrong doing.[2] Some individuals reported being given the choice between being arrest and having their children taken into protective custody or signing away their rights to their property, often times cash.[3]

This situation mirrors civil forfeitures happening in many other states.[4] The federal statute concerning civil forfeiture requires that after property is seized, notice must be sent within 60 days, unless the “Government files a civil judicial forfeiture action against the property.”[5] Notably, the agency can pursue a forfeiture action without attempting to pursue a criminal indictment.[6] It may also occur that notice is not sent until after a declaration of forfeiture is entered, when the identity of the “interested party” or owner is not known by the Government.[7] Further the federal statute provides that in addition to the 60 day window for notice, a “supervisory official in the headquarters office of the seizing agency” may delay the sending of notice for 30 days.[8] For many people, the property seized is jewelry, cash, or their vehicle.[9] For instance, one woman was without her only vehicle and transportation to work for months because her car was seized, yet no criminal action was alleged seeking an indictment.[10] This flips the presumption of both innocence and property rights. People whose property is seized under either federal or state civil forfeiture laws are deprived of the property with no allegation of wrongdoing and certainly no proof of such.[11] After which, the burden is on them to prove the innocence of their property before reclaiming.[12] For many people in this situation, regaining the property is “notoriously difficult and expensive, with costs sometimes exceeding the value of the property.”[13] And all of this occurs at a profit to the policing agencies that seize the property.[14]

Currently, many states’ statutes still allow for this type of “policing for profit”[15] through civil forfeitures, without any charges or allegations of crimes.[16] Civil forfeiture laws were never intended to be used as an intimidation tool for government agencies to coerce individuals into signing over property or being detained.[17] Rather, these laws were intended as a “as a way to cripple large-scale criminal enterprises by diverting their resources.”[18] Keeping with this intent, civil forfeiture should require a determination that the preponderance of the evidence standard has been met before property is seized (or shortly after). This type of limit is imminently necessary to prevent the situation of ‘highway robbery’ similar to the Texas incidents, but also to protect both the civil and property rights of individuals.

State legislatures should reform civil forfeiture statutes to have stricter requirements to prevent abuse of the doctrine and erosion of property rights. Many states and Congress have acknowledged the abuse of civil forfeiture and taken steps to limit the practice.[19] Nearly every state has civil asset forfeiture laws, but each varies greatly as to the scope and treatment.[20] One remedy to stop the abuse of civil forfeiture is to remove the financial incentive for agencies or cities to profit by taking property.[21] In 2015, 23 states allowed the confiscating agency to keep 100% of the value of the seized property.[22] Other states remove this financial incentive by providing that the agency keeps none of the profit from the value of the seized property.[23] Inhibiting the prospect of ‘policing’ for profit, states can limit the temptation to deprive people of their property in order to make a profit for the agency.

Raising the standard of proof for property to be forfeited is another way states can combat the abuse under civil asset forfeiture laws.[24] A “preponderance of the evidence” standard or slightly more likely than not is the standard of proof for civil forfeiture in thirty-one states and for the federal government.[25] Many states have already begun raising the standard of proof toward the ‘beyond a reasonable doubt’ standard.[26] Further, some states including New Mexico have done away with civil forfeiture, and thus, now require a criminal conviction before property may be confiscated.[27]

Civil forfeiture allows ample room and incentive for government agencies to confiscate private property without seeking criminal charges. People who have been victims of abuses of civil forfeiture laws must go through a long and sometimes financially draining process to regain their property. States must ensure that proper restrictions are included in civil asset forfeiture laws as to not incentive policing for profit and to protect the property rights of innocent individuals.

[1] Janell Ross, Texas Police Shakedown Lawsuit Settled, Huffington Post (Aug. 9, 2012).

[2] Id. See also Sarah Stillman, Taken, The New Yorker (Aug. 12, 2013) (describing a family who was stopped in Tehana and was given the option to sign over their $6000 dollar of cash or “face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care.”; Elora Mukherjee, Settlement Means No More Highway Robbery in Tenaha, Texas, American Civil Liberties Union (Aug. 9, 2012).

[3] Ross, supra 1.

[4] See Stillman, supra note 2.

[5] 18 U.S.C § 983 (2000). (note that notice must be provided as required by law in the filing of the suit).

[6] Id.

[7] Id. at (a)(1)(v).

[8] Id.

[9] See e.g., Stillman, supra note 2.

[10] Id.

[11] Id. See also 18 U.S.C. § 983 (2000).

[12] Id.

[13] Asset Forfeiture Abuse, American Civil Liberties Union available at https://www.aclu.org/issues/criminal-law-reform/reforming-police-practices/asset-forfeiture-abuse

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] See Civil Asset Forfeiture Reform Act. See also Charles Basler, Reforming Civil Asset Forfeiture: Ensuring Fairness and Due Process for Property Owners in Massachusetts, 49 New Eng. L. Rev. 665.

[20] Dick M. Carpenter II et al., Policing for Profit: The Abuse of Civil Asset Forfeiture 2d., Institute of Justice (2015).

[21] Id.

[22] Id. (including Pennsylvania, Delaware, Massachusetts, Nevada, and Arizona).

[23] Id. (New Mexico, Montana, Indiana, Wisconsin, D.C., North Carolina, Maine, and Maryland).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

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