STATES ARE FINALLY REVOKING COPS' LICENSE TO STEAL
Reason magazine|January 2021
A RECENT FLURRY OF LEGISLATIVE ACTIVITY SUGGESTS WHY FORFEITURE REFORM SUCCEEDS—AND WHY IT FAILS.
JACOB SULLUM

WHEN COPS INVADED Ginnifer Hency’s home in Smiths Creek, Michigan, they seized TV sets, ladders, her children’s cellphones and iPads, even her vibrator. “They took everything,” she told state legislators a year later. The July 2014 raid turned up six ounces of marijuana.

Hency, a mother of four with multiple sclerosis, was using marijuana for pain relief based on her neurologist’s recommendation, as allowed by Michigan law at the time. She also served as a state-registered caregiver for five other medical marijuana patients. So after the cops arrested her for possessing marijuana with the intent to sell it, a St. Clair County judge dismissed the charges. But when Hency asked about getting her property back, she recalled, “The prosecutor came out to me and said, ‘Well, I can still beat you in civil court. I can still take your stuff.’” When she heard that, Hency said, “I was at a loss. I literally just sat there dumbfounded.”

Annette Shattuck, another medical marijuana patient who was raided by the St. Clair County Drug Task Force around the same time, told a similar story. “After they breached the door at gunpoint with masks, they proceeded to take every belonging in my house,” she testified at the same hearing. The cops’ haul included bicycles, her husband’s tools, a lawn mower, a weed trimmer, her children’s Christmas presents, $85 in cash from her daughter’s birthday cards, the kids’ car seats and soccer equipment, and vital documents such as driver’s licenses, insurance cards, and birth certificates.

“How do you explain to your kids when they come home and everything is gone?” Shattuck asked. She added that her 9-year-old daughter was now afraid of the police and “cried for weeks” because the cops threatened to shoot the family dog during the raid. Although “my husband and I have not been convicted of any crime,” Shattuck said, they could not get their property back, and their bank accounts remained frozen.

Stories like these, which highlighted the petty, cruel, money-grubbing behavior encouraged by a system that allows police to take property allegedly tainted by crime, helped inspire Michigan legislators to change the civil asset forfeiture laws that created this license to steal. In 2015, they raised the standard of proof in civil forfeiture cases involving drugs or “nuisances” such as gambling and prostitution, requiring “clear and convincing evidence” rather than “a preponderance of the evidence,” the more-likely-than-not rule that had previously applied. They also required law enforcement agencies to report “all seizure and forfeiture activities” every year and indicate whether the property owners had been charged with crimes, which is not necessary for the government to take your stuff.

More reforms followed in 2017, when the state legislature eliminated a requirement that property owners post a cash bond of up to $5,000 before challenging a forfeiture, and in 2019, when it required a criminal conviction to complete forfeitures in drug cases involving property worth $50,000 or less. And Michigan legislators were not alone in imposing new restrictions on civil forfeiture, which police and prosecutors throughout the country use to supplement their budgets. Since 2014, according to a tally by the Institute for Justice (I.J.), 35 states and the District of Columbia have enacted civil forfeiture reforms, including two—New Mexico and Nebraska—that have abolished the practice.

On the face of it, this surge in forfeiture reform is puzzling. The practice of taking property by accusing it of complicity in crime, regardless of whether the owner has done anything wrong, has been a subject of national discussion since the late 1980s. The manifest injustice of that system led to modest federal reforms in 2000, then not much else. But judging from press coverage, interest in the issue has exploded in recent years: References to “civil asset forfeiture” in the Nexis news database rose to more than 11,000 during the last decade from fewer than 400 in the previous decade.

The story behind the recent wave of state reforms is the story of how politicians became newly aware of a problem that never went away and why they decided to do something about it, despite the dogged resistance of police and prosecutors keen to keep the money train rolling. The story varies from one state to another, but it generally involves a combination of outrageous injustices, corruption scandals, and rising disgust at the unseemly greed that leads cops to steal TV sets and snatch money from children’s birthday cards.

‘WE TRIED TO FIX IT, AND IT DIDN’T FIX’

THE FIRST NEXIS reference to “civil asset forfeiture” appears in an Associated Press story from 1988, four years after a federal law expanded the use of this weapon, supposedly to cripple organized crime and deprive drug “kingpins” of their ill-gotten gains. The A.P. article described the Coast Guard’s seizure of two multimillion-dollar yachts on which it found tiny amounts of marijuana. “Interdiction or Overkill?” the headline asked.

Overkill, Congress eventually decided. In 2000, after more than a decade of similar outrages, it approved the Civil Asset Forfeiture Reform Act (CAFRA). CAFRA imposed notification rules, required the government to prove a criminal nexus by a preponderance of the evidence (instead of forcing the owner to prove that his property was not subject to forfeiture), allowed owners to challenge the proportionality of forfeitures, and required the government to pay the legal costs of owners who managed to prevail in forfeiture cases. The law also expanded the “innocent owner” defense, allowing people to recover their property by proving they did not know about the criminal activity that allegedly made it subject to forfeiture or, if they knew, “did all that reasonably could be expected” to stop it.

CAFRA hardly put a stop to forfeiture abuses. In fact, it expanded the reach of federal civil forfeiture beyond drug cases to include the proceeds of any “specified unlawful activity,” allowing the government’s money grabbers to allege many other underlying offenses. And the law’s safeguards were not as helpful as they seemed.

The innocent owner defense forced owners to prove their innocence, a complicated, time-consuming process that often costs more in legal fees than the property is worth. Unlike criminal defendants, the owners of seized assets generally do not have a right to court-appointed counsel. CAFRA did not change the profit motive created by letting law enforcement agencies keep the proceeds from the forfeitures they initiate. It did not address the fundamental problem of punishing people by taking their assets without charging them, let alone proving their guilt beyond a reasonable doubt. And it did nothing to help the victims of proliferating state forfeiture laws.

Brad Cates, who directed the Justice Department’s Asset Forfeiture Office from 1985 to 1989, watched with growing horror as the monster he had helped create wreaked havoc across the country. Initially, he viewed civil forfeiture as a useful tool to confiscate the assets of big-time drug traffickers and make crime less profitable. But as the crimes that could be used to justify federal forfeitures expanded from half a dozen to hundreds; as one state after another emulated Uncle Sam; and as examples of innocent victims accumulated, Cates had a change of heart.

“We tried to fix it, and it didn’t fix,” he says. “They made a stab at it, and it didn’t significantly change anything.”

To illustrate that point, Cates cites a 2015 case in which federal drug agents boarded a train in Albuquerque and seized $16,000 in cash from Joseph Rivers, a 22-year-old aspiring video producer who was traveling from his hometown in Michigan to Los Angeles. Rivers explained that he planned to use the money—which represented years of savings combined with contributions from relatives—to produce a music video. “It just didn’t seem like he ought to have it, so they took it,” Cates says. “And it doesn’t seem right. It doesn’t seem fair to many of us.”

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