Wednesday, Nov. 30, 2022 | 2 a.m.
Every year, law enforcement officers seize billions of dollars in cash and property from the public. Mostly, these seizures take place without any proof of criminal conduct and are based solely on suspicion, and they typically lead to the government taking ownership of these assets.
Public criticism of this practice — known as civil forfeiture — is regularly countered by law enforcement agencies themselves: they argue that seizure and forfeiture help fund police and prosecutorial budgets. These debates often end in stalemates, pitting the tragedy of people who have done nothing wrong losing their property against the importance of supporting adequate law enforcement budgets.
But now a new autobiography, “Why Cops Should Be Chasing the Bad Guys, Not the Big Bucks: A Former Prosecutor Explains How Civil Forfeiture Undermines America’s Criminal Justice System,” makes a compelling case that civil forfeiture damages law enforcement itself. A longtime prosecutor’s experience with civil forfeiture spurred his own growing realization that the process itself was corrupt and corrupting.
The author describes what happened when two local patrolmen detained a speeding motorist. They searched the car, discovering cash and cocaine worth tens of thousands of dollars. The prosecutor wanted to interview the motorist before offering anything like a plea bargain so that the source of the contraband could be determined. But that interview never took place because soon after the arrest, the suspect’s lawyer made a settlement offer consisting of the surrender of the contraband, a generous cash payment to the government and no jail time.
The cops, who regularly advocated jail time for wrongdoers, didn’t ask for it this time. Instead, they urged the prosecutor to accept the settlement offer. Why?
Eventually, he realized that his law enforcement colleagues were responding to a troubling incentive: in that situation, the cops’ pursuit of better-funded police budgets seemed to outweigh their interest in getting wrongdoers off the streets.
Ultimately, the author became a federal prosecutor, and his autobiography describes how prosecution at the federal level initially seemed immune to these pressures. But then he began to understand how civil forfeiture created a new set of perverse incentives at the federal level.
As a federal prosecutor, the author spent months supervising drug investigations, and many of those investigations involved wiretaps, cooperating officers from multiple jurisdictions, and the guarded exchange of information between law enforcement allies. As the scope of the investigation widened, more jurisdictions got pulled in.
One day, that meant trouble because one team of law enforcement officers suddenly got word that a sizable amount of cash was being transported from one place to another. The cash hoard wasn’t really that much from the perspective of a major drug dealer. But it meant a lot for law enforcement officers who were rewarded for expanding their budgets.
A crew of officers decided they would be appreciated more by their colleagues for a cash seizure than for patiently playing a part in a multidistrict (and, indeed, multinational) drug investigation. But when the officers sprang into action, burst down the door, and grabbed the money, that seizure was a lot like a deer hunter firing a gun that scares off all the other animals. The investigation’s other targets — who correctly read the signals produced by an otherwise inexplicable police raid — started disposing of their phones, destroying evidence and fleeing the country. Because of greed, a major investigation was damaged.
For cops and prosecutors to do their jobs effectively, their motives must be beyond suspicion. But looking at the effect of civil forfeiture on law enforcement, this prosecutor’s firsthand experience suggests that we’re not there yet.
Dan Greenberg is the general counsel for the Competitive Enterprise Institute. He wrote this for InsideSources.com.