HOUSTON, TEXAS – HE ARRIVED in Houston with $500 in his pocket. A man he met on the Greyhound bus gave him a room until he found his feet. Zaher El-Ali, a Jordanian immigrant, worked hard and built up a small business renovating and selling cars and houses. He is now a proud American citizen. But, ridiculous though it sounds, his truck is in trouble with the law.
Six years ago, he sold a Chevy Silverado to a man who agreed to pay for it in instalments. Before the truck was paid off, the buyer was arrested for drunken driving. It was his third such arrest, so he was sent to prison and the police seized the truck. Mr Ali applied to get it back. He pointed out that he still held title to the vehicle, and that since the buyer had stopped making payments on it, he was entitled to reclaim it. But the government refused.
In most states the police can seize property they suspect has been used to commit a crime. Under “civil asset forfeiture” laws, they typically do not have to prove “beyond a reasonable doubt” that a crime was committed, or even charge anyone with an offence. What is more, the money raised by auctioning seized houses, boats and cars is often used to boost the budgets of the police department that did the seizing. That can mean fancier patrol cars, badass hardware or simply keeping the budget plump in lean times. In one survey 40% of police executives agreed that funds from civil-asset forfeiture were “necessary as a budget supplement”. This conflict of interest has predictable consequences. It spurs the police to pay more attention to cases that are likely to involve seizable assets (such as drug busts) and less attention to other ones. A report from the Institute for Justice, a pressure group, calls it “Policing for Profit”.
An owner can usually challenge a seizure by arguing that he did not know his property was being used for criminal purposes. But in 38 out of 50 states, the burden of proof is on him to prove his innocence. In February Texas demanded to know from Mr Ali whether he had asked the buyer about his previous arrests for drunk driving—as if that were a car dealer’s responsibility. It also demanded a sheaf of irrelevant documents, such as Mr Ali’s bank and tax records for the past two years. Mr Ali’s lawyer, Scott Bullock, argues that this is “clearly designed to intimidate” Mr Ali into giving up. Instead, he is suing to have the Texas civil asset forfeiture law struck down.
Civil and criminal asset forfeiture laws are often confused. Criminal forfeiture involves proven criminals. A convicted bank robber may lose his getaway car; a money-launderer may lose the house he bought with his illicit profits. Civil forfeiture is different. No conviction is necessary. If the government suspects that property has been used in the commission of a crime, it files an action against the property itself. This leads to odd case names, such as State of Texas v One 2004 Chevrolet Silverado (Mr Ali’s case) and United States v $10,500.
Even in states where local rules make civil asset forfeiture hard, police can get around that problem by calling in the feds. After a joint operation by state and federal authorities, the proceeds are split. This is called “equitable sharing”. Police respond to these incentives exactly as you would expect them to. Where state law makes it tricky for them to seize property and hang on to it, they seize significantly more via “equitable sharing”, according to Marian Williams and Jeff Holcomb of Appalachian State University and Tomislav Kovandzic of the University of Texas, Dallas. Total federal seizures have exploded from $400m in 2001 to $1.3 billion in 2008. State data are patchier, but the trend appears to be sharply upward.
Police and prosecutors deny that the system is widely abused. Scott Burns of the National District Attorneys Association says that elected sheriffs would be punished at the polls if they went around seizing property without good cause. But the safeguards are slender. For instance, police can find a wad of cash in a car, claim that the owner was planning to buy drugs with it, and then seize it. The evidence may be simply that a dog smelled drugs; yet one test found that a third of banknotes have traces of cocaine on them. The poor are disproportionately at risk, since people without credit cards are more likely to carry cash. And since the sum seized is often less than the legal costs of trying to get it back, many people never try.
By and large, the police do a dangerous job honourably. But they are human, so giving them a financial incentive to seize people’s property is dotty. Why should the money not be put in the general pot of public funds? And seizing a citizen’s assets without proving him guilty of anything is nakedly unjust.
To protect and serve
Relations between police and civilians in high-crime areas are already touchy. When they fear being shot at, officers tend to burst into suspects’ homes with overwhelming force: there has been a 1,500% increase in paramilitary police raids between the early 1980s and the beginning of this decade, reckons Peter Kraska of Eastern Kentucky University.
Bystanders are often handcuffed at gunpoint, as happened to one of Lexington’s blameless friends a few weeks ago in Washington, DC. Innocents are occasionally killed, as happened to a seven-year-old girl in Detroit on May 16th. Paramilitary police raids make sense if a suspect is known to be armed and dangerous, but are often used simply to execute search warrants for drugs. Public confidence in the police is higher in America than in many other countries, but among the groups who come into most frequent contact with them, such as black Americans, it is low. If the police want more co-operation from the civilians they serve, they need to keep their guns holstered more of the time, and their hands out of other people’s pockets.