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Via Grits for Breakfast, this story from Janelle Stecklein in the Amarillo Globe-News is a pretty stunning (and accurate) description of the I-40 forfeiture racket:

DPS officials said the I-40 corridor, which runs through seven counties in Texas, is one of the busiest in the state for criminal activity. Drug cartels and smugglers often use the highway to transport narcotics, weapons, humans and illegal profits from coast to coast.

Perhaps no issue proves more quietly contentious in the local law enforcement community than how the seized currency – about $14.6 million in 51/2 years – is divided among agencies hungry for revenue in a struggling economy.

In the end, only about 6.4 percent – or roughly $935,000 – of those seizures have remained in the area to benefit regional law enforcement agencies and taxpayers, according to hundreds of pages of documents released by the DPS in response to a public information request by the Amarillo Globe-News.

Records indicate DPS officials often choose to bypass Panhandle state courts in exchange for Amarillo’s federal court when the largest amounts of money are at stake. It’s a decision that has left some I-40 district attorneys frustrated and raised concerns the federal court route gives DPS an easier and larger payday at the expense of local counties and taxpayers.

It’s up to local DPS supervisors with “guidance” from officials in Austin to decide whether a case is filed in state or federal court, according to a written response by DPS officials about seizure policies.

When choosing where to file a case, officials said they consider which prosecutors will accept it, what type of prosecution can be expected, if civil forfeiture suits would be more effective filed federally or in state court and if there is an ongoing investigation involving suspects associated with the seizure.

“The investigations often involve multiple locations in Texas, the U.S. and sometimes foreign countries,” DPS officials wrote. “Collaborating with our federal partners brings extra resources in uncovering the big picture, which can lead to the identification and arrest of higher level players in the drug trade.”

From Jan. 1, 2005, through June 30, DPS reported receiving about $8.5 million in currency profits in I-40 counties. The resolution of nearly $2.6 million in currency-related cases is still pending, according to DPS documents.

In the case of the Carson County traffic stop, McCarthur, Remikie and Paige quickly disavowed any knowledge they were carrying such large sums of money and forfeited any claims to the cash, court records show.

McCarthur later filed a legal claim for the $639,745, but he withdrew his claim in March.

Had he sought to further pursue his claim, McCarthur likely would have faced an uphill battle. Only 1 percent of all currency seized by DPS in 51/2 years was returned, according to state records.

In many cases, claimants forfeit the money without a legal fight.

Whether it’s because the money actually is derived from illegal activity or would-be claimants find it too expensive to fight the government, generally the DPS receives a payday no matter how a case is filed.

Each decision by the DPS to pursue forfeiture cases in federal courts typically brings in thousands of dollars to the U.S. government or Panhandle coffers.

The entire story is worth reading and contains another amazing account of how desperate government agencies are willing to sacrifice their core mission of protecting citizen rights for profit. We are currently analyzing federal Equitable Sharing data to answer the question of how much money is retained by federal agencies; stay tuned for more.

Pete Guither comments that an ideal solution looks something like this:

If I was President (and no, that’s not likely to happen), this is one reform I think I could take on even without Congress (because of course no Congress is likely to agree with what I would do). Just an Executive Order. You see, currently, the feds offer an 80-20 split (80 going to the state law enforcement agency) when they’re involved in an asset forfeiture case. This provides incentive for agencies to involve the feds, because they get to have more money (often bypassing state law that requires it to be used for other things).

My Executive Order would direct how seized funds in joint federal-local actions would be handled:

  1. In states where there is a mechanism for seized funds to go to a non-law enforcement purpose (ie, education, etc.), then the state will get the 80% (with funds going directly to the state for that purpose, not to the law enforcement agency).
  2. In states where there is no qualified mechanism for insuring that seized funds don’t go to law enforcement, then the federal government keeps 100%.
  3. All federal seized funds go to deficit reduction.

This would encourage states to have a non-law enforcement seizure distribution method in order to get the most money, while eliminating the perverse incentive of law enforcement to make decisions based on the cash they might get.

Of course, there’s more reform in this area needed. At the least, asset forfeiture should require that the property owner be convicted of a crime and that prosecution proves the assets were ill-gotten gains of that crime, but that kind of reform would also require Congressional action.

In 1986, the Dept. of Justice was given the statutory authority to distribute money to state and local law enforcement agencies, a provision that was turned into the Equitable Sharing “money laundering” program. The 1986 bill also allowed the DOJ Asset Forfeiture Fund to become a permanent repository for seized assets rather than the Treasury general revenue fund. Pete correctly identifies this as the root of the problem; more generally, I would note that any re-appropropriation of funds away from the direct control of law enforcement agencies is an incentive-compatible solution.

As far as Congressional action, we could make a very long list indeed. We might begin with reinstating the protections afforded by the:

  • Fourth Amendment, with its protection against unreasonable searches and seizures
  • Fifth Amendment, with its protections of due process, property rights, and the right to not be forced to testify against oneself (implicated by the civil or maritime rules of procedure governing civil forfeitures)
  • Sixth Amendment protections to a speedy trial, due process, and the rights to counsel
  • Seventh Amendment rights to civil trial by jury
  • Eighth Amendment rights to avoid double jeopardy and against cruel and unusual punishment (usually incorporating some kind of proportionality requirement).
  • Ninth Amendment protections for rights not specifically mentioned in the Constitution
  • Tenth Amendment federalism protections (it should be possible to deploy federalism arguments against the DOJ Equitable Sharing program)
  • Fourteenth Amendment rights to due process and property rights, and the incorporation of the Bill of Rights against the individual states (people should be able to contest forfeitures under state law in federal court)

For specifics, I might point you to the Smart on Crime Coalition document on asset forfeiture reform, which is endorsed by Americans for Forfeiture Reform.

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