The setting is familiar to anyone who’s watched an episode of Law & Order: a windowless room, save for a large two-way mirror next to the door. A single overhead light illuminates the metal table in the center of the room. A detective enters and begins the interrogation. “Rough night,” he says. “Well, it’s about to get a lot rougher.”
His suspect, however, isn’t a person. It’s a stack of cash.
“What’s $2,500 in cash doing hanging out in somebody’s glove box, huh?” asks the detective. “Answer me!”
Despite starring Jeff Goldblum and other actors from Law & Order: Criminal Intent, this isn’t an episode of the show. It’s a parody bit from HBO’s Last Week Tonight with John Oliver, closing out an exposé on civil asset forfeiture.
The idea of arresting money or other inanimate objects might seem ridiculous, but that’s essentially what happens under current civil forfeiture laws. Unlike criminal forfeiture, under which police can seize property from those convicted of a crime, civil forfeiture does not require you be convicted or even charged. Instead, a civil case is brought against the property itself, giving way to case names such as State of Texas vs. One Gold Crucifix and South Dakota v. Fifteen Impounded Cats.
The practice was ramped up in the 1970s to help law enforcement fight the drug war, allowing police to seize vehicles and money used in the drug trade. While preventing narcotrafficking remains the justification used by police in many seizures, the concentration has shifted from going after drug kingpins’ stashes to taking assets from average citizens.
In State of Texas vs. One Gold Crucifix, “police had confiscated a simple gold cross that a woman wore around her neck after pulling her over for a minor traffic violation,” according to an August 2013 piece in The New Yorker. “No contraband was reported, no criminal charges were filed and no traffic ticket was issued. That’s how it went in dozens more cases involving cash, cars, and jewelry.”
This type of abuse of forfeiture laws has become prolific. In part, this is because police departments get to keep a hefty portion of what they confiscate. Departments can use the money to purchase “toys,” as Columbia, Missouri Police Chief Ken Burton put it in his testimony, or “stuff that would be nice to have.” The financial incentive leads to aggressive forfeiture tactics, and innocent people end up the victims of police departments more interested in filling their coffers than stopping crime.
It’s easy money for police departments and district attorneys’ offices. Civil litigation doesn’t require the same burden of proof as criminal proceedings—beyond a reasonable doubt—instead, only requiring a preponderance of the evidence. Because the defendant is property and not a person, the rights of the property’s owner have no bearing. Many people choose not to fight to get their property back, because the process is so complicated and expensive.
Though civil asset forfeiture has proved its usefulness in fighting dangerous drug traffickers, the profit incentive and disregard for people’s rights have perverted the practice.
To combat what is essentially corruption, states could divert all seized assets to areas of government other than the police—education, for example. Take away the profit motive, and we’d be well on our way to less police abuse of forfeiture laws.
Preferably, though, states should do away with the practice altogether. North Carolina is the only state in the country that prohibits civil forfeiture—for property to be seized, its owner must be convicted of a crime, giving property owners the protection of due process. If states and their police departments and prosecutors are truly concerned with justice, they should follow North Carolina’s lead and get rid of civil forfeiture.
