“You know what? We should prob­a­bly only talk about crim­i­nal jus­tice and whiskey”

▶▶Groups on the left and right are fight­ing as­set for­fei­ture ▶▶“This is some­thing that would hap­pen in an­other coun­try”

Bloomberg Businessweek (Europe) - - Contents -

Last April, Ok­la­homa State Sen­a­tor Kyle Love­less saw a sur­pris­ing news story. Spurred by ad­vo­cacy groups from the left and right, the Demo­cratic se­nate and Repub­li­can house in neigh­bor­ing New Mex­ico had passed a bill rein­ing in cops. Gov­er­nor Su­sana Martinez, a Repub­li­can ris­ing star and for­mer pros­e­cu­tor, had signed it into law. The is­sue that crossed par­ti­san bound­aries? Civil as­set for­fei­ture, a long-stand­ing prac­tice giv­ing law en­force­ment agen­cies the power to con­fis­cate prop­erty tied to a crime, even if they haven’t brought charges against the own­ers or won a con­vic­tion. “I had al­ways thought this is gang money or drug money or some­thing,” says Love­less, a con­ser­va­tive Repub­li­can. “I started do­ing re­search on­line—I started see­ing ter­ri­ble sto­ries of in­no­cent peo­ple’s stuff be­ing taken.”

In May, Love­less in­tro­duced a bill to re­form the for­fei­ture sys­tem in Ok­la­homa. The lat­est ver­sion, filed on Jan. 20, would raise the bur­den on law en­force­ment to jus­tify seizures. It would also cre­ate an over­sight board to de­ter­mine how for­fei­ture rev­enue is spent and would pre­vent the govern­ment from keep­ing most con­fis­cated as­sets un­less it has ob­tained a con­vic­tion. Cops and pros­e­cu­tors have rushed to op­pose the bill. “I think I bit the tail of Moby Dick,” Love­less says.

Love­less has sup­port from an un­likely coali­tion of na­tional con­ser­va­tive, lib­eral, and lib­er­tar­ian non­profit groups, in­clud­ing the Amer­i­can Civil Lib­er­ties Union and Amer­i­cans for Tax Re­form, the anti-tax ad­vo­cacy group run by Grover Norquist. Sim­i­lar bills suc­ceeded last year in Michi­gan and Mon­tana, and oth­ers have been pro­posed in Ohio and Ten­nessee. “This is ac­tu­ally flip­ping the in­no­cen­tun­til-proven-guilty ideal on its head,” says Peter Bailon, gen­eral coun­sel of the non­profit State In­no­va­tion Ex­change, which pro­motes model leg­is­la­tion for state law­mak­ers around the coun­try. Lib­eral groups em­pha­size the im­pact of for­fei­ture on com­mu­ni­ties of color, but con­ser­va­tives fo­cus more on the de­pri­va­tion of prop­erty rights with­out due process. “Our ac­tivists, when they hear about it, they can’t be­lieve it,” says Ja­son Pye, di­rec­tor of jus­tice re­form for Free­domWorks, a group backed by the bil­lion­aire brothers Charles and David Koch. “They think this is some­thing that would hap­pen in an­other coun­try, a to­tal­i­tar­ian regime.”

A grow­ing num­ber of hor­ror sto­ries have helped spark scru­tiny. In 2014 po­lice at Cincin­nati/North­ern Ken­tucky In­ter­na­tional Air­port seized a col­lege stu­dent’s $11,000 life sav­ings be­cause his lug­gage al­legedly smelled of pot. Last year, an as­pir­ing mu­sic video pro­ducer tak­ing an Am­trak train from Michi­gan to Cal­i­for­nia lost $16,000 in sav­ings when a Drug En­force­ment Ad­min­is­tra­tion agent who was ques­tion­ing pas­sen­gers con­fis­cated his cash. “We don’t have to prove that the per­son is guilty,” the DEA agent in charge for Al­bu­querque, where the money was taken, later told the

Al­bu­querque Jour­nal. In 2008 of­fi­cers in com­mando gear who showed up at a re­cep­tion at the Con­tem­po­rary Art In­sti­tute of Detroit, which didn’t have a liquor li­cense, con­fis­cated 44 cars from guests. A fed­eral judge ruled in 2012 that the raid vi­o­lated the Fourth Amend­ment and re­flected a “wide­spread prac­tice” by the depart­ment.

Law en­force­ment groups say such ex­am­ples give an im­por­tant tool a bad rap. “There does not ex­ist a wide­spread prob­lem of us tak­ing as­sets from in­no­cent cit­i­zens and them

hav­ing to fight long bat­tles to get their as­sets back,” says Eric Dal­gleish, a Tulsa deputy po­lice chief bat­tling Love­less’s bill. Ceas­ing con­fis­ca­tions would make Ok­la­homa a mag­net for crime, ar­gues Tulsa County District At­tor­ney Steve Kun­zweiler. Drug traf­fick­ers of­ten rely on “mules” who are rarely if ever charged or con­victed of crimes, he says; pre­vent­ing po­lice from seiz­ing the cash they carry would only en­able their bosses to do busi­ness from afar. “Just Google ‘de­cap­i­tated bod­ies hang­ing from bridge,’” Kun­zweiler says. “That’s a re­al­ity for the cit­i­zens of Mex­ico, and I do not want that to be a re­al­ity for any ci­ti­zen in the United States of Amer­ica.”

Lib­er­tar­i­ans scoff at that line of ar­gu­ment. “The thumb­screw and the rack may also be use­ful tools for fight­ing crime, but we don’t use them,” says Roger Pilon, who di­rects the Cato In­sti­tute’s Cen­ter for Con­sti­tu­tional Stud­ies and has been fight­ing what he calls “mod­ern piracy” since the 1990s. It used to be a lone­lier cause. A fed­eral bill cham­pi­oned by Illinois Repub­li­can Henry Hyde, passed in 2000, im­posed mod­est lim­its and no­ti­fi­ca­tion re­quire­ments on fed­eral for­fei­ture cases. The hand­ful of groups fight­ing for­fei­ture back then had trou­ble get­ting more done. “It very much fell on deaf ears,” says Gary Daniels, the Ohio ACLU’s chief lob­by­ist. “Peo­ple have been talk­ing about as­set for­fei­ture more in the last six months than I’ve seen in the 19 years be­fore that com­bined.”

The co­op­er­a­tion across ide­o­log­i­cal lines mar­shals the strengths of each group in­volved. The lib­er­tar­ian law firm In­sti­tute for Jus­tice, which com­pares and grades each state’s cur­rent laws, takes ad­vice from the ACLU on where re­forms are most likely to pass. The lib­eral State In­no­va­tion Ex­change di­rects leg­is­la­tors look­ing for sam­ple anti-for­fei­ture bills to model leg­is­la­tion de­vel­oped by the In­sti­tute for Jus­tice, which is sim­i­lar to that of­fered by the con­ser­va­tive Amer­i­can Leg­isla­tive Ex­change Coun­cil. Ex­perts from ide­o­log­i­cally dis­sim­i­lar or­ga­ni­za­tions team up for aware­ness-rais­ing pan­els: One held on Jan. 12 in New Hamp­shire was spon­sored by the Charles Koch In­sti­tute, was mod­er­ated by Fox Busi­ness host John Stos­sel, and fea­tured an ACLU at­tor­ney.

Last spring the lib­eral Cen­ter for Amer­i­can Progress and the con­ser­va­tive Free­domWorks co-hosted a lunch meet­ing on crim­i­nal jus­tice re­form for bloggers. It was “a trust-build­ing ex­er­cise,” says Re­becca Val­las, man­ag­ing di­rec­tor of CAP’s Poverty to Pros­per­ity Pro­gram. Later, par­tic­i­pants got to­gether to so­cial­ize over drinks. Val­las told Free­domWorks’ Pye about her work de­fend­ing So­cial Se­cu­rity and in­come as­sis­tance pro­grams. “We were both able to laugh,” Val­las says, “and say, ‘You know what? We should prob­a­bly only talk about crim­i­nal jus­tice and whiskey.’”

The oddly paired ac­tivists aren’t win­ning ev­ery­where. In Cal­i­for­nia, which al­ready re­stricts for­fei­ture more than most states, law en­force­ment lob­by­ing quashed a bill that would have curbed col­lab­o­ra­tion with fed­eral au­thor­i­ties on for­fei­tures. Sean Hoff­man, the leg­is­la­tion di­rec­tor for the Cal­i­for­nia District At­tor­neys As­so­ci­a­tion, says his side pre­vailed by pro­vid­ing politi­cians with per­son­al­ized es­ti­mates of the amount in for­fei­ture funds their lo­cal cops could lose. Still, he ac­knowl­edges that per­suad­ing leg­is­la­tors to side with

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