The Invisible Scandal of Civil Forfeiture Abuse

The New Yorker has an excellent article on abuse of civil forfeiture by local governments that use it as a perverse source of revenue.  Civil forfeiture occurs when the government seizes (without compensation) property used in connection with a criminal act. Although it is plainly a punitive doctrine very much akin to criminal punishment, the burden of proof for the government in civil forfeiture (preponderance of the evidence, or, in some states, "probable cause") is much lower than for criminal convictions (beyond a reasonable doubt).  And there is no requirement in civil forfeiture that the property owner even be charged with or convicted of a crime.  In addition, the owner has no right to state-provided counsel.

State law often gives law enforcement agency the right to keep all or some of the proceeds from civil forfeiture. Some local law enforcement agencies have become addicted to the income they can earn from selling property seized using civil forfeiture.   The incentives to push the boundaries are obvious.

To its great credit, the property-rights litigation shop, the Institute for Justice, has been on the case for a while.  This is certainly an area where progressive people and conservative property-rights types can find lots of common ground.  Because a disproportionate number of those targeted for civil forfeiture seem to be relatively poor, the issue has a strong social justice dimension.

Interestingly, when the issue has made it to the Supreme Court, the justices have tended to look at it through the lense of criminal enforcement rather than proeprty rights, leading to a reversal of the usual voting pattern, with conservatives siding with the government and liberals with the property owners.  In Bennis v. Michigan, a 1996 civil forfeiture case, the Court upheld the use of civil forfeiture to take a car from a woman who owned it with her husband, who had used the car, without her knowledge, to have sex with a prostitute.  The opinion for the majority was written by then-Chief Justice Rehnquist, joined by Justices Scalia, Thomas, O'Connor and Ginsburg.  Dissents were written by Justice Stevens (joined by Justices Souter and Breyer) and Justice Kennedy.

Here's a taste of the New Yorker article, but please go read the whole thing:

On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar-and-grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border. They made the trip every April, at the first signs of spring, to walk the local wildflower trails and spend time with Henderson’s father. This year, they’d decided to buy a used car in Linden, which had plenty for sale, and so they bundled their cash savings in their car’s center console. Just after dusk, they passed a sign that read “Welcome to Tenaha: A little town with big Potential!”

They pulled into a mini-mart for snacks. When they returned to the highway ten minutes later, Boatright, a honey-blond “Texas redneck from Lubbock,” by her own reckoning, and Henderson, who is Latino, noticed something strange. The same police car that their eleven-year-old had admired in the mini-mart parking lot was trailing them. Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over.

He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.

No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.

Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.

The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)

The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could 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. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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