Finish the reform of policing for profit
Fifteen years ago Colorado lawmakers decided that citizens should not have their assets seized by law enforcement unless they’d been convicted of a crime (with rare exceptions) and the property was related to criminal activity.
It was a badly needed reform of what’s known as civil asset forfeiture — except police located a major loophole and have been exploiting it ever since. They’ve been teaming up with federal agencies under “equitable sharing” arrangements that don’t abide by the same legal protections.
Police and prosecutors should have realized that someday lawmakers might wake up to this fact and target the loophole, too. Instead, their lobbyists and allies have acted as if a new law that finally does just that — and was signed by the governor last month — is a shocking threat to public safety. In fact, it’s a belated and incomplete attempt to restore due process in line with the Fifth Amendment.
Nor is the battle over the future shape of forfeiture over. In signing the legislation, Gov. John Hickenlooper promised to create a task force to recommend future legislation while addressing the critics’ concerns and providing extra funds to keep “law enforcement agencies whole.” For that reason alone, it’s worth reminding ourselves what’s at stake.
The new law increases reporting requirements for forfeitures, including the value of assets seized and where the money goes. And it bars local agencies from sharing in proceeds with the federal government for any forfeiture under $50,000.
A leading critic of the new law, the normally sensible Colorado Municipal League, complains that it curbs “the use of civil asset forfeiture as a tool without demonstrated evidence that there is a problem in Colorado.”
“We believe the data will show that the types of abuses seen nationally are not happening in Colorado,” its executive director wrote in The Denver Post.
Come on. Why should we believe federal agencies such as the U.S. Drug Enforcement Administration are any more punctilious about constitutional rights here than elsewhere? As recently as March, the Department of Justice inspector general reviewed a sample of 100 cash seizures by the DEA and discovered, as The Washington Post put it, that “the agency could only verify that 44 were even related to criminal investigations.”
In one example, The Washington Post continued, “the DEA took more than $70,000 from a piece of checked luggage without doing any more investigation or attempting to question the owner at the airport — instead simply putting a receipt in the bag and sending it on to its final destination.”
How do federal agents decide what property to confiscate and what to leave alone? They “rely on their immediate, on-the-spot judgment,” the inspector general concluded.
Federal agents have made tens of thousands of these snap judgments in recent years regarding the fate of property. The claim that it doesn’t occur in Colorado in conjunction with local police is not credible. And the problem with such incidents — the problem the Municipal League fails to discern — is that police in America aren’t supposed to be deciding who is guilty and how they are punished. Police may be 99 percent certain in many cases that the assets are dirty, and their belief may be correct, but they don’t get to make the official call. Courts decide who is guilty and punishment follows a verdict.
But not with federal asset forfeiture, which needn’t involve so much as the filing of a charge let alone a conviction. Moreover, such seizures are hardly trivial. As the Washington-based Institute for Justice has noted, between 2000 and 2013, law enforcement agencies in Colorado “used equitable sharing to rake in over $47 million from the Department of Justice alone — more than triple the amount collected under state forfeiture laws.”
In 2014, the total reportedly seized in Colorado under federal law was $13.5 million, 80 percent of which the agencies get to keep.
Critics maintain the $50,000 threshold is arbitrary. Of course it is. The threshold should be higher. But if it were higher their complaints would be more frantic.
Perhaps the most damning objection to forfeiture reform is that the loss of seized assets will undermine crime-fighting itself. This is nothing less than an admission that police have an institutional incentive to seize property. As Denise Maes, the ACLU’s public policy director, wrote in support of the new law, “This argument by opponents underscores the problem with forfeiture in that many police departments use forfeiture to benefit their bottom line.”
Hickenlooper seems to understand why “government for profit,” as he called it in his signing statement, is wrong. But that’s why the next round of forfeiture reform in 2018 should close the loophole altogether allowing seizures without convictions rather than chisel away at this year’s progress. Vincent Carroll is a former Denver Post and Rocky Mountain News editorial page editor.