Most of us would be outraged by the idea that any government authority could take a person’s freedom or property without evidence or due process. That would be contrary to the most basic definitions of liberty that we Texans hold so dear. But this happens all the time in Texas, thanks to a pernicious practice called civil asset forfeiture. Law enforcement can legally seize private property if it merely suspects that the property was somehow used in a crime.
We all agree that crime should not pay. We also agree that if a defendant is convicted, the government should have the right to seize both the assets used to commit that crime and any ill-gotten gains.
But civil asset forfeiture is an entirely different issue. There is no need for a criminal conviction. There does not even need to be an arrest. A law enforcement officer need only assert a “suspicion” that the property in question — not the individual — was involved in a crime.
The burden of proof isn’t on law enforcement to prove the property is derived from criminal activity. Instead, the burden is on the owner of the property to prove that it is not. If that property owner wishes to contest the seizure, he must do so at his expense.
The result of this scheme is that hundreds, perhaps thousands, of Texans are deprived of their property every year without due process or evidence of wrongdoing. A routine traffic stop on a Texas highway can end with the police taking a citizen’s cash. A police investigation in an underprivileged neighborhood can end with the seizure of somebody’s car, or even her home. Many, perhaps most, of these individuals can’t afford the time and legal fees necessary to contest the seizure. So they never see their property again.
Why would Texas preserve such a system? An answer may lie in the fact that Texas law enforcement agencies frequently keep the proceeds of their seizures. Civil asset forfeitures have become a critical source of funds for many budget-strapped police departments and district attorneys’ offices throughout the state. Some agencies derive a significant percentage of revenue from civil forfeiture, with funds being used to pay salaries and bonuses, to buy equipment and vehicles and, in one notorious case, to buy a margarita machine. This presents an obvious conflict of interest, as law enforcement agencies have every incentive to seize as much property as they possibly can.
The state’s own Office of Court Administration reported that $486 million worth of property was seized through civil asset forfeiture in Texas from 2003 to 2012. That same report warned of the “considerable potential for abuse” presented by the status quo.
This past session, our Legislature had a chance to do something about this. Proposed solutions included transparency requirements (so that the public could understand what was seized and where), a heavier burden of proof for law enforcement, barring forfeitures from becoming final until the property owner is convicted of a crime, enhanced protections for those who are found not to be involved in criminal activity, and reimbursement of fees from those who wished to contest forfeitures.
Only a weak variant of the disclosure proposal passed, which simply required the attorney general to put already public information about asset forfeiture on its website.
Law enforcement groups successfully mobilized to beat back the proposed reforms, claiming that civil asset forfeiture is a critical law enforcement tool. We agree that forfeiture should be available to law enforcement. But not in its current form.
There are plenty of urgent and sensible reforms — including increasing the burden of proof for asset seizures and restrictions on the use of forfeited funds — that could curb abuses and decrease the odds that innocent people are unfairly deprived of their property.
The Texas Legislature failed in its obligation to protect citizens’ liberties. But this issue is not going away.
Earlier this year, we helped to launch the Coalition for Public Safety, an unprecedented national bipartisan coalition of funders and advocacy partners that is focused on smart, fair and just criminal justice reform. Groups from across the political spectrum have joined forces to address our most pressing issues in criminal justice, including civil asset forfeiture. Just this year, these groups have succeeded in enacting reforms in both red and blue states. A number of important efforts are also underway at the federal level.
Reforming America’s civil asset forfeiture laws is a centerpiece of the coalition’s efforts. It must also be a priority for every Texan who cares about personal and economic liberty and the fair application of justice.
The Arnolds founded the Laura and John Arnold Foundation and the Coalition for Public Safety.