Guest Post: Civil Asset Forfeiture Unjustly Targets the Poor

by Julian Adorney

Income mobility in the United States has stagnated, a fact that hurts the poor most of all. If President Trump wishes to keep his promises to help low-income Americans escape poverty, he should instruct his administration to jettison, rather than expand, non-criminal asset forfeiture.

Non-criminal asset forfeiture lets government agents seize Americans’ assets (cash, but also cars and even houses) on the mere suspicion that they were involved in a crime. Asset forfeiture is intended to deprive criminals of their ill-gotten gains, but frequently enables police to take the property of Americans who remain innocent in the eyes of the law.

According to a Department of Justice report, they’ve seized $29 billion from 2007-2016 on the federal level. Twenty-three percent of this has been administrative asset forfeiture, meaning that the seizure was less than $500,000 and the victims were never convicted of—or often even charged with—a crime.

Administrative asset forfeiture alone thus translates to takings of $667 million per year. Because asset forfeiture has risen dramatically in the past decade, administrative asset seizure is likely to pass $4 billion during Trump’s first term if left unchecked.

This Injustice Hurts the Poor Most
Asset forfeiture primarily targets the poor. Most forfeitures are for small amounts: in 2012, the Institute for Justice, a libertarian law firm that has focused heavily on asset forfeiture, analyzed forfeiture in 10 states and found that the median value of assets seized ranged from $451 (Minnesota) to $2,048 (Utah). Given that law enforcement routinely takes everything they find in a forfeiture case, these small values suggest the relative poverty of the victims.

The procedural hurdles for challenging asset forfeiture also mean that poor people are less able to get their money back. The average forfeiture challenge requires four weekdays in court; missing four days of work can be a prohibitive expense for Americans living paycheck to paycheck. Additionally, claims are challenged in civil court, where the right to counsel doesn’t apply, meaning that claimants need to hire their own lawyer.

Asset forfeiture is especially dangerous for the unbanked, because police and federal agents consider high amounts of cash to be suspect. 

In 2013, half of all households with incomes of less than $15,000 were either unbanked or underbanked. In a report on non-criminal asset forfeiture, the Center for American Progress argues that “low-income individuals and communities of color are hit hardest” by forfeiture.

Asset forfeiture functions as a regressive tax, which reduces low-income Americans’ economic mobility. A family that sees their savings wiped out has to start again from the bottom. A person whose cash rent payment is seized may turn to payday loans or the black market, or simply be evicted—none of which are conducive to upward mobility.


Civil Asset Forfeiture Is Just Cruel
Regressive taxation can also reduce high school graduation, as teens are forced to leave school to help make ends meet. In their book “Taxing the Poor,” Newman and O’Brien argue, “For every $100 increase on taxes at the poverty line, we saw…a quarter of a percentage point decrease in high school completion.” Taking money from poor families erodes teens’ futures and reduces intergenerational mobility.

Civil and administrative asset forfeiture also seizes cars, which can rob the poor of their ability to work. According to the Institute for Justice, Texas and Virginia seized 17,000 cars from 2000 to 2017–or about 1,000 per year. The average value of the car was $6,000, again suggesting that this tactic targets the poor.

When families lose their vehicles, their earning potential suffers. In a study on transportation access and economic opportunity, the Urban Institute, a leading liberal think tank, found that “keeping or gaining access to automobiles is positively associated with the likelihood of employment.” Without a car, many people cannot show up to work on time, so they often lose their jobs. Workers without cars also have a smaller geographic range in which they can find a new job.

Asset forfeiture also targets low-income business owners. In 2013, more than half of small business owners only accepted cash payments. These owners are more likely to be low-income, because a greater percentage of the poor are unbanked. A business that caters to white-collar workers is more likely to pay the substantial fees required to accept credit cards, because that’s the payment method its clientele prefers. A business in a poor neighborhood is more likely to get away with only taking cash.

Legal business owners who only accept cash are more likely to be victims of non-criminal asset forfeiture. They are more suspicious to police because of the large amounts of money that they carry. An asset seizure will also probably cost them more than it would a customer; one asset seizure could rob a business owner of a week’s worth of revenue. When every dollar of revenue matters for escaping poverty, asset forfeiture can trap the poor.

Trump promised to drain the swamp and reduce funding for federal agencies in order to help working-class Americans. Civil asset forfeiture enriches agencies like the Internal Revenue Service (which can wipe out citizens’ bank accounts) and the Drug Enforcement Agency (which took in $3.2 billion in civil forfeiture assets since 2007) at the expense of low-income Americans.

Rather than expand the practice, Trump’s Department of Justice should end an institution that punishes the poor and erodes due process.

Reprinted from The Federalist.

Julian Adorney is a Young Voices Advocate. His work has been featured in dozens of outlets, including National Review, Fox News’ Nation, and Lawrence Reed’s best-selling economics anthology Excuse Me, Professor.

This article was originally published on FEE.org. Read the original article.

From the Archives: Openly gay Navy veteran rejected for judgeship by Virginia legislature

Openly gay Navy veteran rejected for judgeship by Virginia legislature
May 16, 2012 1:40 AM MST

How often does a state legislature’s vote on the appointment of a local traffic-court judge win the attention of the New York Times, MSNBC, Washington Post, and other national news outlets?

Not often (if ever), except when, as in the case of Virginia judicial nominee Tracy Thorne-Begland, the proposed judge is openly gay and the only one of dozens of similar prospective judges rejected by the state House of Delegates.

Thorne-Begland, a prosecutor for the past decade in the Richmond Commonwealth’s Attorney’s office, was sponsored by Republican Delegate Manoli Loupassi and two colleagues to fill an open slot in the city’s General District Court, which has jurisdiction over traffic offenses, small claims, and petty crimes.

Bob Marshall intervenes

Thorne-Begland’s nomination was vociferously opposed by U.S. Senate candidate Bob Marshall, who represents Manassas and parts of Prince William County in the House of Delegates. Marshall said that Thorne-Begland, a Navy veteran who served as a pilot during the first Gulf War, was unsuitable for the job because of his previous activism on behalf of the civil rights of gay citizens and because he is legally married to his same-sex partner even though Virginia’s constitution forbids same-sex marriage.

Marshall argued that Thorne-Begland could not be trusted to uphold the law in a neutral, judicious manner because, like Marshall himself, he is outspoken on gay-rights issues.

Thirty-three legislators voted their approval of the nomination, which had sailed through the Republican-dominated Courts of Justice Committee without controversy. Thirty-one voted against the nomination, while ten abstained and 26 were absent for the 1:00 o'clock a.m. roll call. A majority of 51 votes was necessary for the nomination to succeed.


Social media outrage

Virginia lawmakers and voters took to social media to register their outrage at the vote.

Shortly after the vote, at 1:16 a.m., Delegate Mark Keam (D-Fairfax County) tweeted a photo of the vote display board in the House of Delegates and said, “VA House voted down Tracy Thorne-Begland as a General District Court Judge. First nominee rejected in my 3 years here.”

State senator Adam Ebbin (D-Alexandria) posted on his Facebook wall:

“I'm glad this is being noticed and criticized widely! My worst day in nine years in the General Assembly. I can't imagine how Tracy Thorne-Begland feels.”

State senator Mark Herring (D-Loudoun County) also posted on Facebook:

“The treatment that Mr. Thorne-Begland received by the General Assembly, well after midnight Tuesday morning, was disgraceful and offensive... Together with many of my fellow Virginians, I am embarrassed by what I witnessed take place early this morning.”

Elsewhere on Facebook, Richmond City Council member Charles Samuels wrote:

“It’s rare that I comment about the decisions of other elected bodies, but I have to say that the decision to vote down the judicial sponsorship of Mr. Tracy Thorne-Begland in the General District Court for the City of Richmond surprises, disappoints and frustrates me.”

Delegate Jennifer McLellan (D-Richmond) posted her floor speech on the matter on YouTube, noting that Thorne-Begland "was willing to fight and die for his country but he was not willing to lie about who he was to continue to serve."

On Twitter, the Virginia ACLU stated:

“We don't take positions on judicial [appointments], but shame on [Virginia] House for rejecting Thorne-Begland [because] he's gay.”

Lawyer Brian Schoeneman, a 2011 candidate for the House of Delegates, headlined an article on the widely-read Virginia politics web site, Bearing Drift, “Vote against openly gay judicial nominee another black eye for Virginia.”

Schoeneman wrote that “the vote last night was wrong. We let irrelevant issues cloud the real question – whether Thorne-Begland was qualified and would be competent in doing the job of a General District Court judge – with conjecture and character-assassination. Those are the only questions that matter, and we ignored them by bringing his past activism into play, especially when it would have little impact on the job.”

That article, published on a conservative web site, drew 71 comments by late Tuesday evening, a few favoring the negative vote against Thorne-Begland but most agreeing with the view that the vote was shameful.

Based on those comments and others, many Virginia political activists anticipate that this legislative vote will result in ridicule by late-night TV comedians like Jon Stewart, Stephen Colbert, and Jay Leno.


Publisher's note: This article was originally published on Examiner.com on May 16, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Guest Post: Good News About Civil Asset Forfeiture

by Daniel J. Mitchell

Some types of theft are legal in America.

But there’s a catch. You can only legally steal if you work for the government. It’s a process called “civil asset forfeiture” and it enables government officials to confiscate your property even if you have not been convicted of a crime. Or even charged with a crime.



I’m not joking. This isn’t a snarky reference to the tax system. Nor am I implying that bureaucrats can figuratively steal your property. We’re talking about literal theft by the state.

And it can happen if some government official decides – without any legal proceeding – that the property somehow may have been involved in criminal activity. Or maybe just because you have the wrong skin color.


What Happened to Due Process?
A column in the Wall Street Journal explains this grotesque injustice.

…thousands of Americans have had their assets taken without ever being charged with a crime, let alone convicted. Russ Caswell almost lost his Massachusetts motel, which had been run by his family for more than 50 years, because of 15 “drug-related incidents” there from 1994-2008, a period through which he rented out nearly 200,000 rooms. Maryland dairy farmer Randy Sowers had his entire bank account—roughly $60,000—seized by the IRS, which accused him of running afoul of reporting requirements for cash deposits. …A manager of a Christian rock band had $53,000 in cash—profits from concerts and donations intended for an orphanage in Thailand—seized in Oklahoma after being stopped for a broken taillight. All of the property in these outrageous cases was eventually returned, but only after an arduous process."

These abuses happen in large part because cops are given bad incentives.

Any property they steal from citizens can be used to pad the budgets of police bureaucracies.

Today more than 40 states and the federal government permit law-enforcement agencies to retain anywhere from 45% to 100% of forfeiture proceeds. As a result, forfeiture has practically become an industry."

And real money is involved.

…data on asset forfeiture across 14 states, including California, Texas and New York. Between 2002 and 2013, the revenue from forfeiture more than doubled, from $107 million to $250 million. Federal confiscations have risen even faster. In 1986 the Justice Department’s Assets Forfeiture Fund collected $93.7 million. In 2014 the number was $4.5 billion."

In other words, there’s a huge incentive for cops to misbehave. It’s called “policing for profit.”


Hope on the Horizon
Fortunately, there is a move for reform at the state level.

Since 2014 nearly 20 states and the District of Columbia have enacted laws limiting asset forfeiture or increasing transparency. Nearly 20 other states are considering similar legislation. …lawmakers in Alaska, Connecticut, North Dakota and Texas have sponsored legislation that would send confiscated proceeds directly to the general fund of the state or county. Similar measures in Arizona and Hawaii would restrict forfeiture proceeds to being used to compensate crime victims and their families. …Last fall California Gov. Jerry Brown signed a bill that, in most cases, requires a criminal conviction before any California agency can receive equitable-sharing proceeds. In January Ohio Gov. John Kasich approved legislation to ban his state’s police and prosecutors from transferring seized property to federal agencies unless its value is more than $100,000. Similar reforms have been introduced in Colorado, New Hampshire and a handful of other states."

Legislative reforms are good, though judicial action would be even better.

And, sooner or later, that may happen.

America’s best (but not quite perfect) Supreme Court Justice is justly outraged by these examples of legalized theft. First, some background.

…the U.S. Supreme Court declined to hear a case filed by a Texas woman who says that her due process rights were violated when the police seized over $200,000 in cash from her family despite the fact that no one has been convicted of any underlying crime associated with the money. Unfortunately, thanks to the state’s sweeping civil asset forfeiture laws, the authorities were permitted to take the money of this innocent woman. The Supreme Court offered no explanation today for its refusal to hear the case."

But Justice Thomas is not happy that government officials are allowed to randomly steal property.

Justice Clarence Thomas made it clear that he believes the current state of civil asset forfeiture law is fundamentally unconstitutional. “This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses,” Thomas declared. Furthermore, he wrote, the Supreme Court’s previous rulings on the matter are starkly at odds with the Constitution, which “presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation.” Those other doctrines, Thomas noted, impose significant checks on the government, such as heightened standards of proof, various procedural protections, and the right to a trial by jury. Civil asset forfeiture proceedings, by contrast, offer no such constitutional safeguards for the rights of person or property."

The article continues to explain that Thomas could be signaling that the Supreme Court will address these issues in the future, even though it didn’t choose to address the case filed by the Texas woman.



Let’s hope so. It’s heartening that there’s been a bit of good news at the state level (I even wrote that reform of asset forfeiture was one of the best developments of 2015), but it would be nice if the Supreme Court ultimately decided to prohibit civil asset forfeiture altogether.

But that might be years in the future, so let’s close with a very fresh example of a good state-based reform.


Reform in Mississippi
The Wall Street Journal favorably opined yesterday about reforms that have been enacted in Mississippi.

…it’s worth highlighting a civil forfeiture reform backed by the ACLU that Mississippi GOP Governor Phil Bryant signed last week with bipartisan legislative support."

The editorial reminds us why asset forfeiture is wrong.

…civil forfeiture laws…allow law enforcement agencies to seize property they suspect to be related to a crime without actually having to obtain a conviction or even submit charges. Police and prosecutors can auction off the property and keep the proceeds to pad their budgets. …Perverse incentives…create a huge potential for abuse."

Here’s what Mississippi did.

Mississippi’s reforms, which were pushed by the Institute for Justice and had nearly unanimous support in the legislature, would curb the most egregious abuses. Law enforcers would have to obtain a seizure warrant within 72 hours and prosecute within 30 days, so they couldn’t take property while trying to formulate a case. Agencies would also be required to publish a description of the seized property along with its value and petitions contesting the forfeiture to an online public database. …the public will finally be able to police misconduct by law enforcement in criminal raids. That’s something even liberals can cheer."

It’s nice that there’s been reform at the state level, and the Mississippi example is quite encouraging.

That’s the good news.

But the bad news is that there may not be much reason to expect progress from the White House since both President Trump and his Attorney General support these arbitrary and unfair confiscations of property.

Which is a shame since they both took oaths to protect Americans from the kind of horrible abuse that the Dehko family experienced. Or the mistreatment of Carole Hinders. Or the ransacking of Joseph Rivers. Or the brutalization of Thomas Williams.

However, if the first two directors of the Justice Department’s asset forfeiture office can change their minds and urge repeal of these unfair laws, maybe there’s hope for Trump and Sessions.


Reprinted from International Liberty.

Daniel J. Mitchell is a senior fellow at the Cato Institute who specializes in fiscal policy, particularly tax reform, international tax competition, and the economic burden of government spending. He also serves on the editorial board of the Cayman Financial Review.

This article was originally published on FEE.org. Read the original article.

Obama Administration Gets One Right

Peter McWilliams must be looking down from heaven with a smile of satisfaction but also with a question: "What took so long?"

McWilliams was the libertarian author of the 1996 book, Ain't Nobody's Business If You Do: The Absurdity of Consensual Crimes in a Free Society, and a patient who used medical marijuana.

He died because the government arrested him and denied him access to his medicine.

The late William F. Buckley, Jr., wrote about McWilliams in June 2000, shortly after McWilliams died:

A federal judge in California (George King) would decide in a few weeks how long a sentence to hand down, and whether to send McWilliams to prison or let him serve his sentence at home.

What was his offense? He collaborated in growing marijuana plants.

What was his defense? Well, the judge wouldn't allow him to plead his defense to the jury. If given a chance, the defense would have argued that under Proposition 215, passed into California constitutional law in 1996, infirm Californians who got medical relief from marijuana were permitted to use it. The judge also forbade any mention that McWilliams suffered from AIDS and cancer, and got relief from the marijuana.

What was he doing when he died? Vomiting. The vomiting hit him while in his bathtub, and he choked to death. Was there nothing he might have done to still the impulse to vomit? Yes, he could have taken marijuana; but the judge's bail terms forbade him to do so, and he submitted to weekly urine tests to confirm that he was living up to the terms of his bail.

Today the Obama Administration struck a blow for life, liberty, and property when it announced that it will no longer be a federal law-enforcement priority to prosecute sick people who use medicinal marijuana to treat their illnesses, or the caregivers who provide them with the medicine.

Carrie Johnson reports in the Washington Post:

The Obama administration delivered new guidance on medical marijuana to federal prosecutors Monday, signaling a broad policy shift that will mean fewer crackdowns against dispensaries and the people who use them.

Attorney General Eric H. Holder Jr. instructed government lawyers that in 14 states where medical marijuana use is legal, federal prosecutors should focus only on cases involving higher level drug traffickers or people who use the state laws as a cover story.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said. "This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."

The Administration's decision strikes a blow for life because there are people who may die without access to medicinal marijuana.

It strikes a blow for liberty because people should be free to choose the sorts of treatments they use for their illnesses.

It strikes a blow for property because people should be able to do anything on their private property they wish, as long as they do not violate the rights of other people, without the interference of government.

Or, as Peter McWilliams put it, paraphrasing that blues anthem of the 1920s: "Ain't nobody's business if you do."

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The Supreme Catholic Moment

With the nomination (and presumed confirmation by the Senate in time for the first Monday in October) of Judge Sonia Sotomayor to the United States Supreme Court, a moment in judicial history has been reached that would have been unimaginable, and perhaps repulsive, to the Framers.

That is, six of the nine justices of the Supreme Court will be Roman Catholic, two will be Jewish, and only one -- John Paul Stevens, the Court's oldest member -- will be a white, Anglo-Saxon Protestant (WASP). The Catholic bloc includes Chief Justice of the United States John Roberts and associate justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.

Who would ever have foreseen a Catholic supermajority on the Supreme Court?

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August 28, 1963

Whatever Barack Obama might say in his convention speech tonight in front of a mere 75,000 people at Invesco Field in Denver, it will hardly approach the quality and significance of this speech by the Reverend Martin Luther King, Jr., delivered 45 years ago today on the steps of the Lincoln Memorial in Washington, D.C.

Update on the Oklahoma Three

On April 2, I posted some video of citizen activist Paul Jacob, who was being interviewed by WINA-AM radio host Rob Schilling about the initiative process, term limits, the taxpayers' bill of rights (TABOR), and related issues.

During the interview, Paul spoke about how he and two colleagues were being prosecuted in Oklahoma in a blatantly political fashion.

Now there is an update on the "Oklahoma Three" (as they're known) and what they may be facing in the weeks to come.

From the web site "freepauljacob.com" comes this news:

On July 23, the Oklahoma Three—Paul and his two co-defendants, Rick Carpenter and Susan Johnson—will have a preliminary hearing in Oklahoma City. At the hearing, the government must establish enough evidence to convince a judge to schedule a trial.

Theoretically, at least. In reality, it is rare for a judge to dismiss a case at this stage no matter how skimpy the evidence or twisted the logic of the charge.

A number of citizens and groups in Oklahoma, as well as in neighboring states, will be attending the hearing, which begins at 9:00 am on Wednesday, July 23. If you’d like to attend the hearing or events being held the day before, or have any questions about it, please email Brandon Holmes at bholmes@samadamsalliance.org.

Paul has been inspired by how pro-initiative citizens in Oklahoma are working to reform the petition process. During the recent legislative session, Attorney General Drew Edmondson vigorously lobbied Senate Democrats to block a bill to do nothing more than create a task force to study the state’s chained and neutered initiative process. Foes of direct democracy managed to thwart that proposal. But the issue isn’t going away.

According to a 2007 poll, 92% of Oklahomans support the right of citizen initiative. Yet, thanks to adverse court rulings or the sheer difficulty of the petition process, voters have been able to cast ballots on only two of 23 citizen initiatives filed this decade. (See The Oklahoman’s editorial about the hamstringing of the process.)

Now Oklahomans for Initiative Rights is doing what the legislature has refused to do—launching its own citizen task force to study the state’s petition process and make recommendations for reform.

The Attorney General’s assault against the Oklahoma Three is vindictive and outrageous. But it may also spur some much needed change. Stay tuned.

Many Americans who have used the initiative process to achieve justice will be watching these proceedings in Oklahoma to see if the rule of law is maintained, or if citizen activism just becomes another in a long list of crimes imposed by the political class on the rest of us.