Confiscating 'Criminals’' Property Is a Cop Racket

Cops are more likely to pull over drug suspects on their way out of cities than on their way in.DEA/HANDOUT/REUTERS

BY  DANIEL BIER 

FILED UNDER: Opinion

Until last week, police in all 50 states had the power to take your property—cash, cars, houses, or anything else—based purely on their assertion that the property was “guilty” of a crime.

This means that police and prosecutors can confiscate your stuff, sell it and pocket the money without even charging you with a crime, as long as they say that the property was connected in some way to illicit activity. The burden is then on the owner to hire lawyers to prove, not that they are innocent, which would be horrific enough, but that their property is.

This shakedown scheme is called civil forfeiture, and it’s how you get cases with titles like United States v. $124,700 and 1958 Plymouth Sedan v. Pennsylvania. It’s also how police departments line their pockets: In many cities and states, cash and property seized under civil forfeiture go directly back to the departments themselves, incentivizing more and more seizures.

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But on Friday, New Mexico became the first state to abolish this reprehensible, unconstitutional practice. The legislature voted unanimously to replace civil forfeiture with criminal forfeiture, requiring the government to first prove beyond a reasonable doubt, to a jury of their peers, that people are actually guilty of a crime before taking their property.

Forfeiture laws started from a reasonable-sounding premise, that criminals should not be able to keep proceeds of their illegal activity, and that by “taking the profit out of crime,” cops could both discourage criminals as well as help to better equip law enforcement to catch them. The good guys get stronger as the bad guys get weaker, or so the theory went.

The problem was that by trying to take the profit out of crime, civil forfeiture laws put it in policing. Because of forfeiture, cops are more likely to pull overdrug suspects on their way out of cities than on their way in: mules bring drugs in, but they carry cash out. Cops seize the cash, buy more cruisers, pull over more drivers, and seize more cash—even if they can’t prove cash had anything to do with drugs.

Citizens who want to fight it face big costs and enormous obstacles in a confusing and byzantine legal process where the slightest misstep means they lose their homes, money, or vehicles for good. Police and prosecutors often seize property on the thinnest pretext and then bully owners into settling with them for a fraction of its value—money that then goes to pay the salaries of the prosecutors who took it.

This vicious logic is how we got from the reasonable-sounding premise to the city attorney for Las Cruces, New Mexico, gleefully telling a room full of cops, “Think about it, this is a gold mine. A gold mine. You could seize a house, not a vehicle.… Just think what you could do as the legal department. We could be czars. We could own the city.”

Not anymore. At least not in one state. 

New Mexico is small, but this move is significant because it shows the breakdown of a decades-old national political consensus between law enforcement bureaucracies and “law and order” politicians, a Bootlegger-and-Baptist coalition that helped create and sustain the civil forfeiture regime.

Combined with former Attorney General Eric Holder’s modest reform of a federal program that allowed police to do an end-run around state laws limiting forfeiture, there is hope that the moral cover for this deeply corrosive practice is being stripped away, and the public will finally see it for what it is: a racket.