At a recent meeting with law enforcement, Donald Trump suggested ruining the career of an unnamed Texas legislator who had allegedly proposed eliminating civil asset forfeiture. In case you don’t know much about it, John Oliver has a great explanation: it’s a civil procedure that police can use to seize property from people when they believe the property was involved in a crime
But, it is notoriously hard to challenge, has been used in questionable ways against poorer people and people of color, and funds resulting from the sale of seized property are typically given to the seizing law enforcement agency, creating substantial motivation for abuse.
Moreover, in most states, little information is required from police departments about how they use the funds, leading to abuses such as buying a margarita machine or expensive coffee machine with seized funds. It is something that progressives, libertarians, and even conservatives such as the Koch brothers are against.
An amazing amount of property is seized this way.
In 2012, the Justice Department alone seized $4.2 billion in assets, and that does not include other federal seizures held in other funds, or funds seized and retained by states. Civil seizure happens easily because technically the government’s problem is with your property, which has no constitutional rights, not with you, who does.
So, your property can be taken with very little evidence beyond suspicion. Attempts to resist are often met with threats about what will happen if one persists, and it’s hard to challenge even if you move past the threats.
Civil asset forfeiture is seen as an important tool in combatting drug cartels and other criminal conspiracies because its much lower burden of proof allows police to seize property even when they cannot gain criminal convictions. That lower burden of proof plays a major role in both the tactical utility and ability to misuse this procedure. Over time, it has increasingly helped to fund departments too, allowing police departments to buffer the ravages of state and local budget crises, even while other aspects of government have withered.
However, its misuse and the clear incentives to misuse it mean that if it is going to stay, we need to figure out how to preserve the good while limiting the bad. Some have suggested changes that would make it easier to challenge forfeitures such as assuming owners are innocent until proven otherwise, or requiring police meet a higher burden of proof such as clear and convincing evidence, both of which I support.
However, I suggest a simpler solution: state legislatures should require that any funds from the sale of seized assets go to supplement (not replace) funding to public defender’s offices. While some have suggested lessening the profit motivation for police by moving funds into general revenue funds, we know from the rising use of fees in criminal courts, this is no panacea as city officials may still pressure police to seize assets.
Using the money to fund public defenders is simpler.
If you want to curb the improper use of civil asset forfeiture, make the incentives work so that law enforcement will only use it when they really need to. Not only would seized assets no longer directly benefit their budgets, it would fund the attorneys that help keep their actions in check in the criminal courts.
When police really needed to bust cartels, the procedure remains at police disposal. When it is not needed, police will not see themselves or their city or state bosses (who control their annual budgets and approve their benefits packages) as benefiting from over-using it. And, future proceeds will go to support attorneys who defend individuals who face long odds in the criminal justice system already.
It avoids unnecessary commissions and oversight bodies by just flipping the incentives. Perhaps instead of trying to ruin someone’s career for working on an important issue, Mr. Trump could work to find practical and common sense reforms for policies that do some good but also do a lot of bad at the same time.
Jennifer Earl is a Professor of Sociology at the University of Arizona and a Public Voices Fellow with The OpEd Project. She researches the collateral consequences of arrests, particularly for protesters.
The views expressed by contributors are their own and are not the views of The Hill.