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In the latter half of President Obama’s second term, his administration began making efforts toward criminal justice reform. Under his direction and with his presidential pardons, the Department of Justice began to release non-violent drug offenders from federal prisons in the most outward show of reform. While making positive contributions to the cause of reform, other actions in President Obama’s final year have tarnished his legacy as a criminal justice reformer. Instead of scaling down the use of asset forfeiture, the Obama administration re-escalated the program.
In the Trump administration, Attorney General Jeff Sessions, a career-long proponent of the hard-line “tough-on-crime” approach, has crusaded the use of asset forfeiture on the federal level. With Sessions at the helm of the Department of Justice, controversial policies such as asset forfeiture and a renewed federal clamp-down on marijuana will continue, at the expense of civil liberties and economic efficiency.
Civil asset forfeiture is not sound criminal justice policy because it creates perverse incentives for law enforcement agents to abuse it, which not only has economic consequences but also constitutional implications as well.
Civil Asset Forfeiture
Civil asset forfeiture exists as a means for all levels of government to recover the “fruits” of illegal activity depending on the rules governing that jurisdiction. Asset forfeiture allows the government to initiate civil proceedings against the inanimate property of defendants to confiscate them. As a result, asset forfeiture cases bear amusing names such as US v. $405,000 and some change or US v. One assortment of 89 Firearms.
The wide scope of civil asset forfeiture allows law enforcement agencies to confiscate the belongings of a defendant, whether it be currency, vehicles, physical property such as land, or everyday objects.
Luxury items such as sports cars and yachts are not exempt from asset forfeiture either.
Certain actions undertaken by the Department of Justice in the last two years are concerning. In 2016, then-Attorney General Loretta Lynch re-introduced the Equitable Sharing Program. The program allows local law enforcement to prosecute asset forfeiture under federal law, which would permit local law enforcement to keep up to 80 percent of the assets seized. The current Attorney General, Jeff Sessions, reinstated asset forfeiture. He has made no secret of the displeasure he holds for critics of Equitable Sharing and asserts that the targets of asset forfeiture are people who have “done nothing in their lives but sell dope.” Given that candid and thoroughly incorrect statement, among others, it’s highly unlikely that asset forfeiture will wind down under the Trump administration.
Asset forfeiture is economically inefficient because it produces many perverse incentives. According to economist Peter Salib, perverse incentives occur when certain individuals benefit from activities that are undesirable to society. In this case, the individuals benefiting from undesirable activities are law enforcement agents, benefiting from criminal activity.
The ability of the government to seize a wide variety of assets, including hard currency, produces perverse incentives for US law enforcement agents. The perverse incentives produced by asset forfeiture are worsened by two main factors.
First, law enforcement agencies are permitted to seize assets regardless of whether the defendant is found guilty in a court of law or even charged of a crime. The subversion of due process allows law enforcement to seize assets with virtual impunity.
Second, most law enforcement agencies are permitted use of confiscated assets such as cars and currency to fund and equip law enforcement operations. The potential financial rewards allowed by civil asset forfeiture are incentivizing law enforcement agents to maximize their forfeiture revenue by undertaking more operations or routine actions such as traffic stops, to seize more assets. Civil asset forfeiture has produced a cycle of perverse incentives. The longer law enforcement can legally seize more assets with scant oversight, the worse the perverse incentives become, which will then turn encourage more forfeiture.
This cycle of perverse incentives created by forfeiture is not mere economic conjecture, it is supported by data and statistics from the past decade.
Asset forfeiture has clearly benefited law enforcement, especially on the federal level.
In the past decade, over $28 billion dollars have been seized by the Department of Justice. In 2014, federal law enforcement deposited more into their forfeiture funds than the total losses from burglary in the same year: $5 billion to $3.5 billion. It is simply astounding that the federal government managed to outperform criminals in a single year. Perverse incentives for law enforcement are alive and well, thanks to asset forfeiture.
…and Civil Liberties
For civil liberties advocates, asset forfeiture is a nightmare. The main concern lies in the apparent lack of due process inherent in asset forfeiture programs. In many cases, individuals who have their assets seized are never convicted or even charged with a crime. Many of the notable stories involving forfeiture abuse start out with a seemingly routine traffic stop that ends with a blindsided and bewildered citizen watching as his cash or car is seized.
For those who do have their assets seized, there is little recourse for them to retrieve their assets or defend against forfeiture because of the high costs of litigation.
Perhaps the most egregious problem of civil asset forfeiture is its disproportionate targeting of minorities and low-income individuals, especially in urban metropolises, like Chicago. Studies by police accountability non-profits have found that asset forfeitures in Chicago were more frequently conducted on the South and West sides of the city, areas predominantly made up of low-income individuals and minorities. Between 2012-2017, approximately 11,000 seizures in Cook County were for amounts lower than $1,000 dollars. Nearly 1,500 seizures were under $100 dollars. Many of these “low-dollar seizures” were again centered in the South and West sides of Chicago. Unfortunately, asset forfeiture is hurting the people it was supposed to protect.
Government anti-crime programs, campaigns, and policies —like the Drug War, minimum mandatory sentencing, “three-strikes,” and civil asset forfeiture — tend to begin with the best of intentions, but time and time again, they end with disastrous consequences. For the sake of due process, the Fifth amendment, and for economic efficiency, the U.S. should move to regulate or limit the practice of asset forfeiture. Perhaps the United States can work to eventually end this failed, invasive practice.