Civil forfeiture laws need to be reformed
Connecticut police departments are clearly turning civil forfeiture into a lucrative business model, and they are doing so with the help of the United States government. I know. Amazing, but true.
Civil forfeiture occurs when police seize the property of suspected criminals even if suspects are never charged or convicted. They just take it and sell it.
The sale of other people’s property generates a good bit of revenue for police departments in Connecticut and around the country: more than $2 million on average in Connecticut and more than $18 million nationally over a multi-year period. That’s enough revenue for departments to become dependent, especially when budgets are tight.
Public officials don’t emphasize revenue, of course, because that would draw attention to the fact that taking other people’s property (most of it cash), has become a business model. Instead, they emphasize law enforcement.
Last week, Attorney General Jeff Sessions said: “Civil asset forfeiture … [helps] defund organized crime, take back ill-gotten gains and prevent new crimes from being committed, and it weakens the criminals and the cartels.”
Sessions makes it sound as if fighting bad guys isn’t possible without civil forfeiture, and perhaps that’s true on occasion. But in many cases, indeed in half the cases in Connecticut, according to 2016 figures, civil forfeitures were worth less than $570. That means two things. One, we’re not talking about big-league forfeitures. Two, we’re not talking about big-league criminals.
Indeed, the amounts are so small that few fight for them. If the police pull you over for a broken taillight, arrest you for possession of marijuana above the legal limit, and confiscate $200 in cash, you might be able to get that money back if you avoid conviction, but that would mean paying for a lawyer. Most people take the loss.
It’s an injustice state lawmakers have finally faced. Gov. Dannel Malloy signed a law on July 10 with which Connecticut joined 13 other states in permitting police to confiscate property only if it occurs during lawful arrest and if that arrest results in a plea deal or conviction. Otherwise, the property must return to its owner.
But problems remain. One is that police are not required to declare revenue generated by civil forfeitures. That information is kept secret. That means the public can’t know how dependent police departments are on forfeitures, nor can elected officials know how much funding their police departments need.
When budgets are tight, as they often are, police departments may end up getting money that’s badly needed elsewhere. The problem is that the incentive to confiscate property is still very strong, because Connecticut law allows police departments to keep nearly 70 percent of proceeds.
But the bigger problem is the federal government. A week after the governor signed the state law banning civil forfeitures without conviction, Attorney General Sessions announced a program through which Connecticut authorities can bypass the law.
Called “Equitable Sharing,” the Justice Department program allows local police to process forfeiture cases through federal statutes and share revenues with federal agencies. In practice, however, there’s little sharing. According to Governing magazine, “the federal government sends up to 80 percent of the assets right back to local departments, effectively allowing them to get around stricter state laws.”
Sessions is reviving the program even as the practice of civil forfeitures faces increasingly bipartisan opposition. Numerous bills have been introduced in Congress to reform federal forfeiture laws. Clarence Thomas, a conservative justice on the U.S. Supreme Court, criticized the practice, saying it has led “to egregious and well-chronicled abuses.” Liberals defending minorities targeted by local police have joined conservatives alarmed that governments are impinging on the inalienable right to private property.
But missing from the debate is that this practice is so clearly about money and creating a mechanism for making money. It is an illegitimate business. In any other context, we would describe the widespread practice of civil forfeiture as a combination of theft and money laundering. We don’t, because the theft is legal and the money laundering is aided and abetted by the federal government.
John Stoehr is a lecturer in political science at Yale, a business columnist for Hearst Newspapers, an essayist for the New Haven Register and a U.S. News & World Report contributing editor.
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