Police have incentives to commit legalized highway robbery.
JULY 01, 1993 by BRUCE BENSON
Bruce Benson is Distinguished Professor of Economics at Florida State University.
In 1863, Henry Plummer was sheriff of the gold camp at Bannock, Montana. He also organized a gang of about 100 “road agents” who stole from miners and travelers; his deputies were horse thieves, stagecoach robbers, and murderers. Citizens could do something about highway robbery by their sheriff in 1863, however. Since Plummer was breaking the law, a vigilante committee arrested, tried, and hanged him in short order, along with 21 members of his gang, banished several others from the area, and frightened off most of the rest.
Today, the sheriff of Volusia County, Florida, also leads an organized band of “road agents” who confiscate cash from travelers on Interstate 95. His road agents are called the “drug squad” and they have seized an average of $5,000 per day from motorists during the 41 months preceding June 1992 and over $8 million dollars since 1989. But Floridians cannot do anything about this highway robbery, because it is perfectly legal under the state’s asset seizure law.
Such highway robbery is being “justified” as part of a “war on drugs.” Actually, however, most Volusia County seizures involve southbound rather than northbound travelers, suggesting that the drug squad is more interested in seizing money than in stopping the flow of drugs. In fact, no criminal charges were filed in over 75 percent of the County’s seizure cases. But more significantly, a substantial amount of money has been stolen from innocent victims. In order to get their money back, these people must undertake an expensive civil trial to prove their innocence, something most decide they cannot afford to do.
Our criminal justice system presumably is based on the premise that someone is innocent until proven guilty, because it is better to err on the side of letting a guilty person go free than to err by punishing someone who is innocent. Florida’s asset seizure law has turned this presumption on its head. The sheriff argues that it is better to hurt a few innocent victims than to take a chance on letting a guilty drug trafficker’s money through (although the trafficker is usually free to go).
In fact, the sheriff apparently feels that fining innocent victims a few thousand dollars for carrying cash is okay, since money is not returned even when the seizure is challenged, no proof of wrongdoing or criminal record can be found, and the victim presents proof that the money was legitimately earned. Three-fourths of Volusia County’s 199 seizures that did not include an arrest were contested. The sheriff employed a forfeiture attorney at $44,000 a year (he moved to private practice in mid-1990, but now is paid $48,000 to consult with the sheriff’s department regarding how much to give back) to handle settlement negotiations. Only four people ultimately got their money back, one went to trial but lost and has appealed, and the rest settled for 50 to 90 percent of their money after promising not to sue the department. How many were drug traffickers? No one knows, since no charges were filed and no trials occurred, but it is clear that several were innocent victims.
A 21-year-old naval reservist had $3,989 seized in 1990, for instance, and even though he produced Navy pay stubs to show the source of the money, he ultimately settled for the return of $2,989, with 25 percent of that going to his lawyer. In other similar cases the sheriff’s department kept $4,750 out of $19,000 (the lawyer got another $1,000), $3,750 out of $31,000 (the attorney got about 25 percent of the $27,250 returned), $4,000 of $19,000 ($1,000 to the attorney), $6,000 out of $36,990 (the attorney’s fee was 25 percent of the rest), and $10,000 out of $38,923 (the attorney got one third of the recovery).
The Volusia County sheriff’s department is not the only law enforcement agency that has turned to highway robbery in response to asset seizure laws. Federal forfeitures have taken in $2.4 billion since 1985. The Drug Enforcement Administration seizes millions of dollars at ports, airports, and bus stations; Congress began investigating alleged abuses by the DEA in May of 1992. Whether large portions of the seizures come from criminals or not cannot be determined since many do not involve arrests, and the costs associated with recovering wrongfully seized assets from the federal authorities can run into thousands of dollars. Many other states have laws similar to Florida’s, and for those that do not, the Comprehensive Crime Act of 1984 established a system whereby any local police department which cooperated with federal drug enforcement authorities in an investigation would share in the assets confiscated.
The 1984 federal confiscations legislation followed a period of active advocacy by federal, state, and local law enforcement officials who suggested that it would foster cooperation between their agencies and increase the overall effort devoted to drug control and its effectiveness; that is, law enforcement bureaus maintained that they needed to be paid to cooperate, whether the cooperation was in the public interest or not.
It was not until a few years after the effects of the legislation could be seen that strong opposition arose. It became clear that the federal legislation was being used to circumvent state laws and constitutions that prohibited certain forfeitures or limited law enforcement use of seizures. For example, North Carolina’s Constitution requires that all proceeds from confiscated assets go to the County School Fund. Law enforcement agencies in those states where state law limited their ability to benefit from confiscations began using the 1984 legislation to circumvent their laws by “routinely” arranging for federal “adoption” of forfeitures, whereupon 80 percent is passed back to the state and local law enforcement agencies, since the federal law mandated that shared forfeitures go exclusively to law enforcement.
As education groups and others affected by this diversion of benefits recognized what was going on, they began to advocate a change in the federal law. They were successful, as the Anti-Drug Abuse Act of 1988 (passed on November 18, 1988) changed the asset forfeitures provision. Section 6077 of the 1988 statute stated that the attorney general must assure that any forfeitures transferred to a state or local law enforcement agency “is not so transferred to circumvent any requirement of State Law that prohibits forfeiture or limits use or disposition of property forfeited to state or local agencies.” This provision was designated to go into effect on October 1, 1989, and the Department of Justice interpreted it to mandate an end to all adoptive forfeitures.
State and local law enforcement officials immediately began advocating repeal of Section 6077, of course. Thus, the Subcommittee on Crime heard testimony on April 24, 1989, advocating repeal of Section 6077 from such groups as the International Association of Chiefs of Police, the Florida Department of Law Enforcement, the North Carolina Department of Crime Control and Public Safety, and the U.S. Attorney General’s Office. Perhaps the most impassioned plea for repeal was made by Joseph W. Dean of the North Carolina Department of Crime Control and Public Safety, who both admitted that law enforcement bureaucracies were using the federal law to circumvent the state’s constitution and that without the benefits of confiscations going to those bureaus, substantially less effort would be made to control drugs:
Currently the United States Attorney General, by policy, requires that all shared property be used by the transferee for law enforcement purposes. The conflict between state and federal law [given Section 6077 of the 1988 Act] would prevent the federal government from adopting seizures by state and local agencies.
. . . This provision would have a devastating impact on joint efforts by federal, state and local law enforcement agencies not only in North Carolina but also in other affected states . . . .
Education is any state’s biggest business. The education lobby is the most powerful in the state and has taken a position against law enforcement being able to share in seized assets. The irony is that if local and state law enforcement agencies cannot share, the assets will in all likelihood not be seized and forfeited. Thus no one wins but the drug trafficker . . . .
. . . If this financial sharing stops, we will kill the goose that laid the golden egg.
This statement clearly suggests that law enforcement agencies focus resources on enforcement of drug laws because of the financial gains for the agencies arising from forfeitures. Apparently it is not the fact that drugs are illegal which induced the massive post-1984 War on Drugs, but the fact that forfeitures generate benefits for police.
The implication that law enforcement agencies benefit from the discretion arising through forfeitures was also corroborated by other testimony. In fact, a statement by the U.S. Attorney for the Eastern District of North Carolina, in support of repealing Section 6077, actually implied that law enforcement agencies were focusing on confiscations as opposed to criminal convictions: “Drug agents would have much less incentive to follow through on the assets potentially held by drug traffickers, since there would be no reward for such efforts and would concentrate their time and resources on the criminal prosecution.” But isn’t that what they are supposed to do? Nonetheless, the police lobbies were successful. A repeal of Section 6077, retroactive to October 1, 1991, was hidden in the 1992 Defense Appropriations Bill.
It is time to rethink asset seizure laws. By making victims prove their innocence before their assets are returned, long-standing constitutional protections of due process are being overturned. Assets should not be seized unless an arrest is made and they should not be kept unless a conviction follows. Furthermore, by giving the seizures to the police department that makes them, we are creating incentives for legalized highway robbery. Seizures of assets used in the process of committing a crime or assets purchased with ill-gotten gains may be a good idea. However, if this is the case, then police should willingly make seizures no matter who gets the seized assets, and they should be eager to ensure that innocent victims get their assets back. If seizures are warranted, they should go into the general fund or into a restitution program for crime victims. Then maybe the incentives for police to commit legalized highway robbery would come to an end.