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Here's What Happens When Cops Police For Profit, Not Public Safety

The Huffington Post The Huffington Post 11/11/2015 Nick Wing

A controversial program that allows police to seize private property has become a massive revenue driver for law enforcement departments around the country, an expansive report published Tuesday has found. Under the practice known as civil asset forfeiture, police and prosecutors work together to permanently seize cash and property -- including cars, homes and businesses -- based on the suspicion that it's connected to criminal activity.

While civil forfeiture is regularly touted as an important crime-fighting tool, authorities don't need to charge owners with a crime in order to take their property, and most of the time, forfeiture is approved without any definitive proof of the alleged criminal ties. Once the government takes control of a person's property, it's typically sold off, sending proceeds back the police departments and legal offices that worked the case.

In the new edition of its "Policing for Profit" study, the Institute for Justice, a libertarian public interest law firm, reports that civil asset forfeiture nets the federal government billions of dollars each year. The Justice Department and Treasury Department deposited more than $5 billion jointly into their forfeiture funds in 2014, up from less than $1 billion in 2004. Each year, feds give hundreds of millions of dollars back to the state and local agencies that are often responsible for making the initial seizures. But even after their obligations, the total value of assets remaining in these funds surged to $4.5 billion in 2014 -- more than seven times what it was a decade ago. 

While these numbers include property confiscated through both criminal and civil forfeiture, the report notes that the vast majority of forfeitures over the past nearly 20 years have come through the civil process. Criminal forfeiture attracts less criticism than its counterpart, because it actually requires prosecutors to charge a suspect, build a case and ultimately obtain a conviction before making a seizure permanent.

Civil forfeiture, on the other hand, allows authorities to bypass the legal protections granted to criminal defendants, because they're technically only charging the property itself with a crime. At the federal level and in 31 states, for example, authorities only need to show that seized property is more likely than not to be connected to criminal activity. That's far below the standard required for a criminal conviction, which puts the burden of proof at "beyond a reasonable doubt." 

This means that even if an innocent person has the time and financial resources to fight for their property in court, they may have an uphill battle to provide sufficient evidence that it was not, in fact, linked to a crime. And if they choose not to contest the seizure, in most cases the property will simply be presumed "guilty."

Law enforcement officials say this standard makes it possible to target the finances of wealthy criminals who may no longer carry cash and contraband in the same car, for example. But the countless horror stories of law-abiding civilians who have gotten hopelessly entangled in the process suggest the current rules are prone to abuse.

The report also digs into the profit motives civil forfeiture offers to police who make seizures. If departments operate with the understanding that more seizures lead to more money for budget items including equipment and salaries, they're more likely to aggressively pursue that process, inevitably leading them to exploit its lack of significant safeguards for innocent owners. This can have a further corrupting influence on law enforcement by leading police and prosecutors to adjust their budgets and tactics in order to prioritize fundraising over public safety and justice. A 2014 report published by The Washington Post revealed just how big the business of civil forfeiture has become for police forces, often leading them to train officers in the best way to pursue seizures and take advantage of lax standards for the benefit of the department.

Lawmakers and critics have begun pushing back on civil asset forfeiture at the state level over the past year, introducing reform measures to address abuse and concerns about incentive structures. Advocates have already been successful in places like New Mexico, Michigan and Washington, D.C. But the Institute for Justice's new report card on state civil forfeiture laws shows just how much work there is left to do. In total, 35 states earn grades of D-plus or below, suggesting there's a national standard of weak protections for property owners and high profit margins for police.

Due to a general lack of public reporting and overall transparency, there's not sufficient data to tell exactly how lucrative or common civil forfeiture is in each state, the study notes. But in reviewing limited information from 26 states and Washington, D.C., the Institute for Justice found that police there had taken in more than $254 million through forfeiture in 2012 alone, bolstered in large part by weak laws governing the process. In states where more complete data was available, the report also found that forfeiture revenues had grown rapidly since 2000.

But even in states with stronger civil asset forfeiture laws, police can typically get around protections by partnering with federal agencies for seizures and seeking forfeiture through the federal process. While the Department of Justice announced changes earlier this year to this program, known as "equitable sharing," the new rules only affect a tiny portion of forfeiture cases. And state and local police departments aren't hesitating to take this more direct path to profits, as equitable sharing payments from the Justice Department totaled nearly $650 million in 2013. Perhaps unsurprisingly, police in states with stricter civil forfeiture laws have been shown to be more likely to circumvent their own rules through "equitable sharing," the Institute for Justice reports

Despite growing criticism over civil asset forfeiture, however, most Americans still aren't familiar with the practice. A HuffPost/YouGov survey conducted in August found that 72 percent of respondents had never heard the term "civil asset forfeiture." And just 30 percent of respondents correctly indicated that law enforcement can use the practice to permanently seize money or other property from a person even without an arrest or conviction.

The issue of visibility is just one challenge that groups like the Institute for Justice face in pushing for broader reforms to civil asset forfeiture in the U.S.

"Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law," writes Scott Bullock, senior attorney at Institute for Justice, in the report's foreword. "We will not rest until civil forfeiture is either radically reformed or -- even better -- abolished."

So if this all of this sounds ridiculous, confusing or unbelievable to you, watch the video above, also produced by the Institute for Justice. Then read their whole report here.

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