America’s sheriffs have given President Trump a woefully inaccurate view of civil asset forfeiture—the process through which police seize, and prosecutors literally sue, cash, cars and real estate that they suspect may be connected to a crime. “People want to say we’re taking money and without due process. That’s not true,” a Kentucky sheriff told the president last month at a White House meeting. Critics of forfeiture, the sheriff added, simply “make up stories.”
In fact, thousands of Americans have had their assets taken without ever being charged with a crime, let alone convicted. Russ Caswell almost lost his Massachusetts motel, which had been run by his family for more than 50 years, because of 15 “drug-related incidents” there from 1994-2008, a period through which he rented out nearly 200,000 rooms.
Maryland dairy farmer Randy Sowers had his entire bank account—roughly $60,000—seized by the IRS, which accused him of running afoul of reporting requirements for cash deposits. Mandrel Stuart had $17,550 in receipts from his Virginia barbecue restaurant confiscated during a routine traffic stop. A manager of a Christian rock band had $53,000 in cash—profits from concerts and donations intended for an orphanage in Thailand—seized in Oklahoma after being stopped for a broken taillight. All of the property in these outrageous cases was eventually returned, but only after an arduous process.
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This kind of abuse has united reformers on all sides of the political debate: progressives, conservatives, independents, even a few former drug warriors. Since 2014 nearly 20 states and the District of Columbia have enacted laws limiting asset forfeiture or increasing transparency. Nearly 20 other states are considering similar legislation. Last week a reform bill passed the Indiana Senate 40-10. It would require a criminal conviction before a court can declare a person’s assets forfeited.
Another good step for state and federal legislators would be to bar agencies from keeping the money they seize. Today more than 40 states and the federal government permit law-enforcement agencies to retain anywhere from 45% to 100% of forfeiture proceeds. As a result, forfeiture has practically become an industry.
The Institute for Justice, where we work, has obtained data on asset forfeiture across 14 states, including California, Texas and New York. Between 2002 and 2013, the revenue from forfeiture more than doubled, from $107 million to $250 million. Federal confiscations have risen even faster. In 1986 the Justice Department’s Assets Forfeiture Fund collected $93.7 million. In 2014 the number was $4.5 billion.
Allowing police and prosecutors to keep part of what they confiscate gives them an incentive to target cash instead of criminals. In 2011 a Nashville TV news station investigated seizures on nearby interstate highways. Drugs usually came in on the eastbound lanes, while the money would flow out on the westbound lanes. The reporters found that police made “10 times as many stops on the money side.” They were less focused on stopping the drugs than on grabbing the cash.