Over at Vox, German Lopez has the details on the latest outrageous case of civil asset forfeiture.
Charles Clarke entered the Cincinnati/Northern Kentucky International Airport last February eager to go back to his mother after a months-long visit with relatives. But instead of a quick, easy trip home to Orlando, Clarke lost his life savings — $11,000 in cash — to law enforcement officials who never even proved he committed a crime.
Clarke, a 24-year-old college student, said losing that $11,000 was “devastating.” He’s been forced to live with his mom, trumping his plans to move closer to school. He’s fallen back on other family for financial support. And he had to take out loans for school instead of paying for it up front — for which he’s still in debt. “It’s been a struggle for me,” Clarke, who’s now fighting in court to get his money back, said.
That’s an uphill battle that could take months. Clarke will also have to demonstrate that he earned the money legitimately —he’ll basically need to prove his innocence. And in Clarke’s case, like many others, the cost of winning back his money may be more than the amount of money that was taken from him. Most people like Clarke can’t find anyone to take their case. Not surprisingly, attorneys aren’t exactly jumping at the chance to represent people whose life savings has been confiscated by the government. If they lose, the attorney doesn’t get paid. And the other side is well-funded. In Clarke’s case, the Institute for Justice estimates that 13 different police agencies are fighting for a cut of what he says are his savings.
So what did Clarke do to lose his money? His bag smelled like pot. That’s it. There was no pot actually in his bag. It just smelled that way, to police and to a drug dog. He did admit to smoking some pot before he arrived at the airport. But that at worst is a misdemeanor. And of course in several states it’s perfectly legal.
Lopez points out that, since 2008, the number of seizures at the Cincinnati airport in which local police operate through the federal government (known as equitable sharing) has increased nine-fold. That’s what happens when police agencies are promised a cut of whatever cash they seize.
There’s a decent argument to be made that criminals shouldn’t be permitted to profit from their crimes. That’s the premise upon which asset forfeiture is based. But in the drug-war panic of the 1980s, the federal government, followed by most of the states, decided that requiring an actual conviction before the government could seize property made forfeiture too difficult. So “civil” asset forfeiture was born. Because it was a civil action, it required a lower burden of proof. And because the target of the action was a piece of property, instead of a person, the government could keep the property, essentially flipping the tables to require the owner to prove he owned or obtained the property legitimately.
There’s a pretty easy fix to this. Go back to requiring a criminal conviction in order for the government to seize and keep property. New Mexico has done that. But there are thousands of police agencies out there with a strong incentive to make sure no other state follows suit.