The suspect practice of civil asset forfeiture

Photo by Martin do Nascimento for The Texas Tribune

Recently, two Texas district attorneys have taken to the editorial pages to openly defend a government practice that has engendered widespread condemnation: civil asset forfeiture. They have lamented reform efforts while making several spurious defenses for the practice along the way that merit challenge.

Civil asset forfeiture is a tool of law enforcement whereby the suspected fruits of criminal activity can be seized and repurposed to combat future criminal activity. “Suspected” is a key term, as current Texas law doesn’t require government to prove in court that criminal activity actually took place — or even to arrest someone for such crimes. Instead, because such illicit activity attaches to the property itself in civil forfeiture cases, and not to the individual — which is a legal oddity — property can be taken and kept with far fewer legal hurdles than exist when an individual is accused of a crime.

It’s precisely this less-rigorous process of divesting people of property — regardless of whether criminal activity has been proven — that has put a bee in the collective bonnet of Texas voters. In a recent poll conducted by Baselice and Associates for the Texas Public Policy Foundation, 88 percent of voters opposed allowing government to take and keep property without first getting a criminal conviction.

Let’s unpack some points made by both prosecutors. In his op-ed appearing in the Dallas Morning News, Joseph Brown — district attorney for Grayson County — suggests that “in almost all cases, the person whose property is seized is convicted of a crime.” Additionally, Patrick Wilson, representing Ellis County, states in his recent TribTalk column that “most asset forfeiture cases pursued by my office have related criminal cases that result in convictions.”

While these statements may be true, it still bears asking: “How can anyone else know this?” Current forfeiture reporting laws don’t require that agencies detail whether criminal convictions are sought. Short of pulling every case jacket for every forfeiture action in the state every year, there is no single source of information proving these assertions. Given the seriousness of government divesting any individual of property, trusting government to self-report these activities — basically, an honor system — doesn’t inspire much confidence.

Just for comparison’s sake, consider forfeitures under federal jurisdiction. A recent Institute for Justice study found that only 13 percent of DOJ forfeiture cases between 1997 and 2013 ended with a criminal conviction. To be fair, this is not dispositive of experience in Texas. However, given that federal and Texas forfeiture laws are substantially similar — if not qualitatively identical — there’s little reason to believe that Texas’ conviction ratio isn’t equally abysmal. The point is: nobody knows.

Another point made by Wilson regarding alleged wrongdoers absconding before being brought to justice in a criminal case is even harder to swallow. He states that had current reform proposals been the law during a 2010 case of drug trafficking in his county, the state wouldn’t have been able to seize an alleged criminal’s semi-trailer truck, which had been abandoned after the accused fled the state before a conviction could be levied.

This is a moot point, however. At least one pending bill in the Legislature explicitly creates an exemption to the conviction requirement in the event a suspect absconds or dies. As Brown states in his article, “criminals should not benefit because they flee.” I agree, and lawmakers have addressed this common-sense concern already.

Most defenses of civil forfeiture involve trying to narrow instances of abuse to the truly absurd cases — such as buying a margarita machine or funding trips to Hawaii. In this way, narrowly-tailored bills that curb such absurdities at the margins can be said to “fix” any problems with forfeiture.

But civil forfeiture itself is the abuse.

It creates a path of least resistance for obtaining property by establishing a legal framework that doesn’t require a finding of criminal wrongdoing. In a state that claims to ensure and protect individual liberties as a birthright, this is intolerable.

Eliminating civil forfeiture wouldn’t handicap law enforcement. North Carolina — which has never had such an apparatus — still fights crime effectively without it. Further, criminal forfeiture will always be an available avenue. If the facts of each case legally justify taking ill-gotten gains from a proven criminal, no one challenges government’s ability to do so.

Civil forfeiture is another story, and should be ended.

Michael Haugen

Staff writer, Texas Public Policy Foundation

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