Cash seizures can be made under state or federal civil law. One of the primary ways police departments are able to seize money and share in the proceeds at the federal level is through a long-standing Justice Department civil asset forfeiture program known as Equitable Sharing. Asset forfeiture is an extraordinarily powerful law enforcement tool that allows the government to take cash and property without pressing criminal charges and then requires the owners to prove their possessions were legally acquired.
The practice has been controversial since its inception at the height of the drug war more than three decades ago, and its abuses have been the subject of journalistic exposés and congressional hearings. But unexplored until now is the role of the federal government and the private police trainers in encouraging officers to target cash on the nation’s highways since 9/11.
The Post also did an analysis of hundreds of thousands of seizure records and found the following:
- There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800.
- Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures.
- Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.
- Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005, three times the rate of other police departments. Desert Snow-trained officers reported more than $427 million in cash seizures during highway stops in just one five-year period, according to company officials. More than 25,000 police have belonged to Black Asphalt, company officials said.
- State law enforcement officials in Iowa and Kansas prohibited the use of the Black Asphalt network because of concerns that it might not be a legal law enforcement tool. A federal prosecutor in Nebraska warned that Black Asphalt reports could violate laws governing civil liberties, the handling of sensitive law enforcement information and the disclosure of pretrial information to defendants. But officials at Justice and Homeland Security continued to use it.
I have a few thoughts about it, and I confess the first one was how little I--and pretty much every other criminal procedure scholar I know--know about this. The prevalence of civil forfeitures is stunning. But what's even more stunning is the way the forfeitures feed into the police departments' bank accounts, and even those of the sheriffs (more on this in the documentary The House I Live In.) Occasionally, we hear of police officers or forensic technicians stealing illegal drugs from the lab--the massive forensic lab scandal in San Francisco is only one example--but, of course, money is not contraband and much easier to use. As are cars, of course.
A few days ago I finished a paper about private prisons, arguing that CCA and GEO, themselves, are not to blame for mass incarceration and its evils. In a neoliberal economy, public actors, just like private ones, operate based on for-profit motives. Maybe we shouldn't be surprised to see police departments behaving like highway robbers gunning for profit; the set of pressures and incentives created by the neoliberal economy communicates that policing, seizing, and incarcerating for profit (or for savings) is just fine.
There's also, of course, the issue of due process. There's all this talk about the importance of the presumption of innocence in the criminal context, and yet, in a strongly related context, it is the individual's burden to prove that his/her money was not procured via, or is not related to, criminal activity. This is a liminal place that shows how difficult it is to draw the line across the criminal/civil divide--especially since the consequences of forfeiture are not necessarily less grave than those of a criminal conviction.
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Props to Liliana Garcia for the link.
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