Texas law enforcement are continuing to enrich themselves using a little-known legal doctrine known as civil forfeiture, according to a new series of investigative reports. Under civil forfeiture, property can be forfeited even if its owner has never been charged with a crime. In these proceedings, accused criminals have more rights than innocent owners and the government sues the property, not its owner. These cases can be so baffling, one Texas Supreme Court Justice recently compared civil forfeiture to Alice in Wonderland and the works of Franz Kafka. But civil forfeiture isn’t just a quirky curiosity—it’s a powerful incentive for law enforcement to take millions.
Last month, the Fort Worth Star-Telegram reported that the District Attorney’s Office in Tarrant County, Texas seized $3.5 million, plus almost 250 cars and 440 computers in fiscal year 2013, roughly equal to about 10 percent of its budget. Of the property seized, almost $845,000 was spent on salaries for 16 employees at the office. By comparison, only $53,000 went to “six nonprofits that benefit victims or prosecution efforts.” The county’s narcotics unit spent an even greater proportion of forfeiture funds on salaries. Last year, the unit seized $666,427 in cash and used $426,058 to pay salaries.
Policing for profit
Even more property was forfeited by participating in a federal program known as “equitable sharing.” By partnering with a federal agency, local and state law enforcement can keep up to 80 percent of the proceeds from a forfeited property. Incredibly, police can collaborate even if doing so would circumvent their own states’ protections for property owners.
Equitable sharing doled out almost $60,000 to the Arlington Police Department and nearly $400,000 to the Dallas/Fort Worth Airport Department of Public Safety in 2013. A joint task force composed of the Tarrant County DA’s Office and the DEA received almost $2.9 million, one of the highest bounties in the state.
In Texas, law enforcement can keep up to 90 percent of the proceeds from forfeited property. That clearly affects police priorities and provides an incentive to pursue cases rich in assets. In another article, the Star-Telegram delved into the forfeiture battle that ensued after law enforcement busted a low-level drug ring at Texas Christian University (TCU). Police arrested twenty-three people for selling marijuana, pills and other controlled substances. Most of those arrested were TCU students, including four members of the football team. No one went to prison; they got probation, deferred adjudication or the charges were dismissed. Others received punishments as low as $300 in court costs.
Yet by using civil forfeiture, police seized over $300,000 worth of property from the students, including 15 cars, trucks and SUVs valued at more than $250,000; over $46,000 in cash; and over $17,000 from laptops, iPads, iPhones and the like. As the paper noted, “The items were seized before formal charges were filed and months before any convictions.” But according to an after-action report issued by the Fort Worth Police Department, the drugs seized in the investigation only had an estimated street value of $29,000. So the property seized was worth far more than the drugs that were actually taken off the streets.
Civil forfeiture creates a “perverse incentive” and “skews law enforcement priorities,” noted Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws (NORML). “It’s one of the worst stepchildren of the war on some drugs.”
Among the TCU cases, cash and electronic devices were typically forfeited to the state. As for the cars, some students were able to retrieve them, but only after months of waiting and negotiations. One student paid $7,500 in an “economic agreement” with Tarrant County to retrieve his Cadillac Escalade. Another person sent $17,500 to the county’s narcotics unit to get back his Ford F-150.
Across the state, pursuing forfeiture cases related to cannabis has generated millions for Texas police. Between 2002 and 2012, the federal government processed $64.3 million in cash and other valuables in civil and criminal marijuana forfeitures in Texas. According to the Wall Street Journal, that amount is the fourth highest in the nation.
“Police power cannot go unpoliced”
Texas law enforcement has a long history of policing for profit. The Institute for Justice found that the average law enforcement agency in Texas took in forfeiture proceeds equal to about 14 percent of its budget in 2007. Among the 10 agencies that obtained the most forfeiture proceeds, that figure soared to one-third. Between 2001 and 2007, law enforcement agencies seized and kept over 35,000 cars, homes and electronics, forfeiting more than $280 million. District attorneys have used these forfeiture funds on ridiculous purchases, including visiting casinos, a vacation to Hawaii and a margarita machine, as seen in the video below.
Most infamously, police in Tenaha seized over $3 million from hundreds of drivers and even made “cash-for-freedom deals” with drivers. As The New Yorker reported last August, drivers “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.”
“The Texas criminal justice system wages war on the politically powerless and the poor are just grist for the mill,” remarked Robert Guest, a former prosecutor in Texas and now a member of Law Enforcement Against Prohibition (LEAP).
Despite enacting some modest reforms in 2011, the Lone Star State still has an appalling lack of safeguards for property owners. To forfeit property, the government needs only to show by a “preponderance of the evidence” that someone’s property is related to a crime. But in criminal convictions, the government must prove someone is guilty beyond a reasonable doubt, a much higher standard.
Unfortunately, Texas isn’t an outlier. According to the Institute for Justice’s report, “Policing for Profit,” 19 other states use the preponderance-of-the-evidence standard in civil forfeiture cases. Another 14 states require even less evidence to forfeit property.
The cost to defend oneself in court further stacks the deck against property owners. “Unlike a criminal charge, you do not have the right to court-appointed counsel when the government wants to take your property,” explained Guest. “So the state usually wins their case by default judgment.”
Tarrant County is no exception. Last year, the District Attorney’s office filed 431 cases, but almost half of them were never contested. Less than 10 percent of cases actually went to trial. One attorney in Fort Worth noted that litigating complicated civil forfeiture cases can cost anywhere from $25,000 to over $100,000.
The odds of an owner winning a forfeiture case are further lowered by the reverse burden of proof in Texas. Incredibly, innocent owners actually bear the burden of proof in civil forfeiture proceedings. In other words, they are guilty until proven innocent.
Zaher El-Ali lost his car to the government because someone else got a DWI with his car. Back in 2004, Ali sold a 2004 Chevrolet Silverado to a man who paid $500 and agreed to pay the rest on credit. In 2009, the buyer was arrested for a DWI and sentenced to prison. Police in Harris County also seized the Silverado for civil forfeiture. But since Ali still held on to the car’s title and the Silverado was registered in his name, he partnered with the Institute for Justice and sued to get his car back. Ali petitioned the Texas Supreme Court to hear the case.
In March, the court declined, meaning Texas gets to keep one more Chevy. In a scathing dissent, Justice Don Willett, joined by two other justices, lambasted the court for deciding not to hear Ali’s case. Justice Willett also criticized the profit incentive (“When agency budgets grow dependent on asset forfeiture…constitutional liberties are unavoidably imperiled”) and the reverse burden of proof (“owners trying to retrieve their homes and other possessions bear a heavier burden than the government that confiscated them”).
To that end, the Texas legislature should enact a series of common-sense reforms. First, take away the incentive to police for profit. Instead of allowing law enforcement to keep up to 90 percent of the proceeds, mandate that those funds be deposited in either the general fund or in a specific neutral fund, like feeding the homeless.
Second, forfeiture should require a criminal conviction. Last month, Minnesota lawmakers overwhelmingly approved such a measure. Third, the government must bear the burden of proof when it comes to innocent owners. This would better protect the property rights of Texans like Ali.
Finally, to prevent cops from collaborating with federal agents and doing an end-run around these reforms, legislators should greatly restrict local and state law enforcement agencies from participating in equitable sharing. Utah once had a very effective ban that essentially killed equitable sharing in the state, until lawmakers defied the will of the voters and overturned it.
These reforms would go far in restoring constitutional protections to Texans. As Justice Willett succinctly put it, “police power cannot go unpoliced.”
Nick Sibilla, Contributor