In February 2014, Drug Enforcement Administration task force officers at Cincinnati/Northern Kentucky Airport seized $11,000 in cash from 24-year-old college student Charles Clarke. They didn't find any guns, drugs or contraband on him. But, according to an affidavit filled out by one of the agents, the task force officers reasoned that the cash was the proceeds of drug trafficking, because Clarke was traveling on a recently-purchased one-way ticket, he was unable to provide documentation for where the money came from, and his checked baggage had an odor of marijuana. (He was a marijuana smoker.)
Clarke's cash, which says he he spent five years saving up, was seized under civil asset forfeiture, where cops are able to take cash and property from people who are never convicted of -- and in some cases, never even charged with -- a crime. The DEA maintains that asset forfeiture is an important crime-fighting tool: "By attacking the financial infrastructure of drug trafficking organizations world-wide, DEA has disrupted and dismantled major drug trafficking organizations and their supply chains, thereby improving national security and increasing the quality of life for the American public."
But the practice has become contentious, in part because agencies are generally allowed to keep a share of the cash and property they seize. In cases like Clarke's, where local and federal agents cooperate on a seizure, federal agencies typically keep at least 20 percent of the assets, while local cops split the remainder among themselves. Critics argue that this creates a profit motive and leads to "policing for profit."
Two local agencies were involved in the seizure of Clarke's cash: the Cincinnati/Northern Kentucky Airport Police, and the Covington Police Department, which is the home office of the DEA task force officer who detained and spoke with Clarke. But according to the Institute for Justice, a nonprofit civil liberties group now representing Clarke in court, 11 additional law enforcement agencies -- who were not involved in Clarke's case at all -- have also requested a share of Clarke's cash under the federal asset forfeiture program. They include the Kentucky State Police, the Ohio Highway Patrol, and even the Bureau of Criminal Investigations within the Ohio Attorney General's office.
These numbers all come from an Institute for Justice review of the Justice Department's Consolidated Asset Tracking System, the federal asset forfeiture database. The airport police have requested the lion's share of Charles Clarke's $11,000, at 40 percent. The Cincinnati Police Dept. has requested an additional 6.14 percent of it, with the rest of the agencies requesting 3.07 percent each. That all adds up to just under 80 percent, which by law is the maximum amount local agencies are allowed to receive in cases like this.
Civil asset forfeiture exists, in part, to compensate law enforcement agencies for their crime-fighting efforts. The Controlled Substances Act states that forfeited property handed over to local law enforcement should have "a value that bears a reasonable relationship to the degree of direct participation of the State or local agency in the law enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law enforcement effort as a whole."
But there have been a series of high-profile controversies over civil asset forfeiture lately, and the practice has drawn increasing scrutiny from lawmakers. Just recently, three Democratic members of the House Judiciary Committee sent a letter to the acting head of the Drug Enforcement Administration expressing concern over a recent forfeiture case involving a young man, Joseph Rivers, who had $16,000 seized at an Amtrak stop in New Mexico. The letter describes the circumstances of the seizure as "disturbing," particularly Rivers' contention that he was racially profiled as the only black person on that part of the train.
Like Joseph Rivers, Charles Clarke is a young black man. And like Rivers, he lost his cash at a so-called "cold consent" encounter -- that is, a warrantless search voluntarily agreed to -- at one of the nation's transportation hubs. Clarke didn't have any marijuana on him or in his baggage, so he hasn't been charged with any drug crimes. He was charged with resisting arrest and assaulting an officer, however, after he tried to prevent the agents from seizing his money by yelling at them and struggling with the agents when they grabbed the cash, according to the agent's affidavit. The charges were subsequently dropped, according to his lawyers at the Institute for Justice.
So why are 11 agencies that were not involved with the forfeiture of Clarke's cash requesting a cut of it? The most likely reason, according to Darpana Sheth, the lead attorney representing Charles Clarke, is that they all participate in the same DEA drug task force that's home to the officer who made the seizure. Jill Del Greco, a public information officer with the Ohio Attorney General's office, confirmed that their Bureau of Criminal Investigations has an agent on that task force, but that they "weren't directly involved" with the Charles Clarke case. She referred additional questions to the DEA, who oversees the task force.
Brian Steffen, assistant Chief of the Covington Police Department which is home to the task force agent who made the seizure, also referred questions about the nature of the task force to the DEA. "Wherever [the task force] conducts its operations is at the discretion of the DEA," he said. A representative for the Cincinnati/Northern Kentucky International Airport similarly referred inquires about the task force to the DEA.
The DEA's Cincinnati office, home to the task force, wouldn't comment on the case or answer questions about the task force. Rich Isaacson, a public information officer with the Detroit DEA office, would only say that "we are bound by the rules and regulations of the asset forfeiture section of the Department of Justice. We don't comment on pending litigation and pending investigations."
The Justice Department's Guide to Equitable Sharing describes how asset forfeiture funds are typically handled in cases overseen by a drug task force: "Many task forces involving federal, state, and local law enforcement agencies have pre-arranged, written equitable sharing agreements based upon relative numbers of personnel and other contributions to the task force operation." It states that these agreements will only be honored when "the pre-arranged percentages continue to reflect the true overall agency contributions to the task force."
But in Charles Clarke's case, agencies stand to receive payouts even though they had nothing to do with the seizure. "Law enforcement agencies are just scrambling to get a cut of the money and it has nothing to do with legitimate law enforcement incentives," said Clarke's attorney Darpana Sheth. "It's more about policing for profit." The small amounts that most agencies requested -- just a few hundred dollars -- represent what Sheth calls the "pettiness" of much of civil asset forfeiture. "It's really just the money, its not anything else that's driving the request," she said.
And over time, these payouts can add up. The Institute for Justice provided numbers from their analysis of Department of Justice forfeiture data on the cash value of seizures at the Cincinnati/Northern Kentucky International Airport (CVG) from 2000 to 2013. Those number show seizure amounts spiking sharply in recent years, even as overall passenger volume has dropped precipitously.
According to the Federal Aviation Administration, passenger departures at CVG have dropped by about 75 percent since 2005, from a high of roughly 11 million down to fewer than 3 million in 2013. Over the same time, the total amount of cash seized at the airport has increased more than sixteen-fold, from $147,000 to $3 million in 2012. So in stepping up their seizure efforts, authorities at the airport are squeezing more cash out of fewer passengers.
In some ways, this increase mirrors the overall rise in asset forfeitures seen around the country in recent years. And it's worth reiterating that this is all above-board and perfectly legal. But for critics, that's precisely the problem. And their efforts are starting to bear fruit: Congress has been holding hearings on the issue. Senator Rand Paul has introduced legislation that would remove some of the profit motive from asset forfeiture practices.
But until such reforms pass, people like Charles Clarke will have to work within the current forfeiture system, which allows law enforcement officers to seize property first under the presumption of guilt. The title of the federal government's lawsuit perfectly encapsulates the odd situation that forfeiture defendants find themselves in: "United States of America v. $11,000 in United States Currency and Charles L. Clarke, II."
His case is currently making its way through federal court.
Update: The headline of this story has been updated. The story has also been updated to add that Clarke was a recreational smoker of marijuana at the time his assets were seized, and to note that he says he spent five years saving up the money that was seized.