The Washington PostDemocracy Dies in Darkness

Opinion New frontiers in asset forfeiture

While much of the progress on criminal justice reform has stalled in recent months, there has been quite a bit of progress on civil asset forfeiture. Several states have continued to put curbs on abuses. New Mexico, Montana and New Hampshire recently passed laws requiring a conviction before property can be forfeited. (Although at least in New Mexico, police agencies appear to be straight-up ignoring the law.)

But law enforcement agencies aren’t giving up the lucrative (for them) practice without a fight. The most common form of property seized is cash. In fact, carrying large amounts of cash is now in and of itself viewed as suspicion of criminal activity. People who still do carry a lot of cash today have as much to fear from law enforcement as they do from criminals, particularly if they’re planning to fly or drive on a highway that passes through a “forfeiture corridor.”

The police theory has been that because most criminals work with cash (probably true), most people carrying a lot of cash are probably criminals (probably not true). Don’t want to be under suspicion? Don’t carry cash.

But the Oklahoma state police are now using some new technology that could make that advice obsolete.

The Oklahoma Highway Patrol has a device that also allows them to seize money in your bank account or on prepaid cards.
It’s called an ERAD, or Electronic Recovery and Access to Data machine, and state police began using 16 of them last month.
Here’s how it works. If a trooper suspects you may have money tied to some type of crime, the highway patrol can scan any cards you have and seize the money.
“We’re gonna look for different factors in the way that you’re acting,” Oklahoma Highway Patrol Lt. John Vincent said. “We’re gonna look for if there’s a difference in your story. If there’s someway that we can prove that you’re falsifying information to us about your business.”
Troopers insist this isn’t just about seizing cash.
“I know that a lot of people are just going to focus on the seizing money. That’s a very small thing that’ s happening now. The largest part that we have found … the biggest benefit has been the identity theft,” Vincent said.
“If you can prove can prove that you have a legitimate reason to have that money it will be given back to you. And we’ve done that in the past,” Vincent said about any money seized.

Since we’re talking about prepaid cards, I’m not sure how this is going to help fight identity theft. Unlike a regular credit card, a prepaid card can be used only if someone adds money to it. Maybe I’m overlooking something, but I just don’t see any advantage to using someone’s identity to obtain a prepaid card unless the thief also has access to the victim’s banking account. But if a thief has access to your bank account, I’m not sure why he’d go to the trouble of then obtaining a prepaid card and filling it with your money.

There is some evidence that some criminals are moving to prepaid cards as alternative to cash. But a lot of low-income people and people with bad credit use prepaid cards, too. Not coincidentally, they’re also more likely to be pulled over and more likely to be suspected of using or selling illicit drugs. Wealthier people with conventional credit cards don’t have to worry about this new technology.

The even scarier question here is whether this technology can also seize money in accounts that are tied to check cards or secured credit cards.

One more thing:

News 9 obtained a copy of the contract with the state.
It shows the state is paying ERAD Group Inc., $5,000 for the software and scanners, then 7.7 percent of all the cash the highway patrol seizes.

Sorry, but that sort of arrangement is shady. As we’ve seen with traffic cameras, private probation and other areas of criminal justice, giving a private company a cut of seized assets is an arrangement rife with bad incentives and ripe for corruption.

Let’s not forget that this is the same state where a district attorney was caught contracting forfeiture actions out to private company, including the authority to pull over motorists. Another prosecutor used forfeiture funds to pay off his student loans. Still another used the law to live rent-free in a seized house, despite a judge’s order to sell it. He also used forfeiture proceeds to pay his utility bills.

A report published last year found that of the $6 million seized by Oklahoma law enforcement agencies over the previous five years, two-thirds was taken from people who were never charged with a crime. The state received a “D” grade for its forfeiture polices by the libertarian advocacy law firm the Institute for Justice. And Oklahoma’s law enforcement community has been especially hostile to any efforts at reform. Last year, Tulsa District Attorney Steve Kunzweiler warned that if Oklahoma passed a law like the one in New Mexico, the state could expect to see decapitations by drug cartels and corpses swinging from bridges.