A history of Missouri’s civil asset forfeiture laws, 1985-present

I’ll a guest on 89.5 KOPN FM in Columbia, Missouri, at 5pm tomorrow night. The show is called the Mid-Missouri Freedom Forum, hosted by Steve Spellman, Mark Flakne, and Mitch Richards. I’ll be speaking on Missouri’s civil asset forfeiture laws during the latter half of the show, and thought that a post would be in order to provide some context and some detail.

It is critical to note that a civil forfeiture proceeding is, at the federal level, an administrative procedure. If your property is taken (either directly by a federal agent, or perhaps first by a state law enforcement agent who sends it to a federal agency for forfeiture), you have 10 days to respond to the claim. If you fail to meet that deadline, you are denied judicial recourse afterwards. You do not have to be ever convicted of a crime or even face charges, and in most forfeiture proceedings the indigent does not have the right to an attorney.

Missouri’s civil forfeiture law is called the Criminal Activities Forfeiture Act. It was amended as late as 2001, when then-governor Bob Holden signed into law a provision strengthening the auditing requirements for forfeiture proceeds in the state. The reform also mandated judicial approval for state forfeitures being transferred to a federal agency, a requirement that has been largely bypassed by federal administrative rules allowing federal agents (or state law enforcement delegated federal powers) to perform forfeitures made on Missouri soil through a federal administrative process, which contains far fewer protections than Missouri law. This provision exists as part of a program named Equitable Sharing, where forfeitures are performed federally and kickbacks in the form of cash or equipment are sent back to the local law enforcement agency.

This circumvention of both judicial approval and state forfeiture processes is desirable to local law enforcement because under Missouri law, forfeitures are constitutionally directed (Article IX, Section 7) to an education fund:

All interest accruing from investment of the county school fund, the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state, the net proceeds from the sale of estrays, and all other moneys coming into said funds shall be distributed annually to the schools of the several counties according to law.

RsMO 166.131 and RsMO 166.300 provide the statuatory direction of those funds, providing for the establishment of the School Building Revolving Fund. This is further clarified by a 1990 decision of the Missouri Supreme Court (Reorg. Sch. Dist. No. 7 v. Douthit), directing that a large sum of drug forfeiture money be given to Odessa School District rather than the local sheriff’s department that had performed the seizures.

This however, did not stop law enforcement from receiving forfeiture funds. Laws passed in the 1980s gave the Department of Justice increasing powers to fund local law enforcement, particularly through the previously mentioned “adoptive” forfeiture provisions that allow federal agencies to seize property at the request of state or local law enforcement. Furthermore, an increasing amount of emerging administrative protocols allowed allowed federal agencies vast leeway in taking property from citizens, making this process easier and more efficient than most state laws allowed.

Responding to complaints that this system had allowed the outright theft of property from innocent citizens, then State Auditor Claire McCaskill in 1999 audited Missouri’s forfeiture system. She found incredible sloppiness and laxity in Missouri law enforcement forfeiture policy and was able to document that 85% of the state’s prosecutor-reported forfeitures (which are a subset of total forfeitures) went to the federal government. McCaskill’s initial audit, and a following investigative series published in the Kansas City Star by Mizzou grad Karen Dillon, were instrumental in spurring the legislative effort that culminated in the 2001 reform bill.

Like I noted, however, the federal circumvention of Missouri’s forfeiture laws has rendered any reform attempt useless. It is 11 years after McCaskill found that 85% of prosecutor-reported forfeitures were sent to a federal agency, and that percentage is roughly accurate today. Here’s some numbers from State Auditor Susan Montee’s 2009 and 2008 audits:

• In 2009, total forfeitures reported to the state auditor were $5.6 million, down from $6.8 million in 2008.
• In 2009, 49% ($2.7 million) of forfeitures reported to the state auditor were sent to federal agency with state circuit judge approval. In 2008 that number was 75% ($5.1 million).

But this isn’t the full story. Department of Justice data detail receipts from local law enforcement over the last ten years. Here are the numbers for 2008 and 2009:

• In 2009, the DOJ reported that $14,245,983 was paid into the fund from Missouri-related seizures. In 2008, that number was $27,323,977.
• In 2009, the DOJ disbursed $19,504,675 to Missouri’s law enforcement agencies through the Equitable Sharing program. In 2008, that number was $10,461,755.

In short, there were $41 million dollars worth of deposits to the DOJ forfeiture funds from Missouri seizures alone during 2008-2009. Obviously, this number is significantly larger than the total forfeitures reported by prosecutors to the State Auditor during that time (by a factor of 4). Perhaps there is a good reason why the DOJ takes control of the vast majority of seizures in Missouri, but there is no good reason I can think of that explains this accounting gap. I will furthermore note that trying to reconcile these numbers with any accounting data from Missouri’s School Building Revolving Fund only compounds the problem; I am not even sure that the forfeitures that end up staying in Missouri even get accounted or deposited correctly into that fund. At the very least, it is difficult for me to explain the discrepancies at this level of data.

Regardless, the complexity of the system and the obscurity of the data are a defect, not a feature, of the system.

That covers most of the substance of my talk KOPN 89.5 FM at 5:30 pm tomorrow; you can listen to the live stream here, and this app lets you listen using your Iphone.