In the February 12, 2010,online issue of Police magazine, Joseph Petrocelli’s article “Asset Forfeiture – You can use criminals’ ill‑gotten gains to help fund your department’s war on crime,” gave law enforcement departments some useful (for them) tips about using seizures and forfeitures to help fund their organizations.  (The article is here: http://www.policemag.com/Channel/Patrol/Articles/2010/02/Asset‑Forfeiture.aspx )

Mr. Petrocelli writes: 

“While primarily designed to weaken criminal organizations by striking at their economic foundation, as an ancillary effect these laws have allowed police departments to generate revenue from the seized assets. These revenues have then been repurposed to fight the war on crime. As we all know, fighting crime, specifically drugs, is time‑consuming, labor intensive, and expensive. Forfeiture can help your agency offset these costs.”

 I have two issues with Mr. Petrocelli’s view as set out in the article.  First, if civil forfeiture laws were, in fact, “primarily designed to weaken criminal organizations,” then those laws would actually be specifically directed at “criminal organizations.”  The civil forfeiture statutes are not directed at those organizations ‑‑ though they can be used against them ‑‑ and, for some time now, everyone involved in these kinds of cases has dropped the pretense that forfeiture statutes are “primarily” designed to combat criminal organizations.  Forfeiture statutes are “designed” to raise money, first, and deprive criminals, second, of alleged “contraband.”

 In Texas, the Legislature added “felony evading” as an offense that would justify forfeiture of an automobile.  So far, that justification has been used against individuals far, far more than against any “criminal organization.”  How seizing someone’s vehicle whose crime was allegedly using that vehicle to run from the cops helps fight crime – let alone fight “criminal organizations” – is beyond my understanding.  Even the guy who ran from the cops is likely to get another vehicle.  It’s not like taking guns off the streets – it’s a car, for goodness sakes.  And, in many cases, that vehicle is the family transportation made even more important when the breadwinner is in jail.

 No one argues that unlawful narcotics, weapons used in crimes, and actual “instrumentalities” of criminal conduct are subject to forfeiture, and, in fact, those things are automatically forfeited every day – those items are “evidence” in criminal cases, mostly, or, at the least, they are “contraband” in the criminal law sense in that it is unlawful to own or possess them.  Property such as that is summarily seized and disposed of without any thought of a civil procedure being necessary.  Law enforcement agencies don’t make any money when “all” they seize is a load of marijuana or a gang banger’s nine millimeter pistol.  The money in the system lies elsewhere.

 That’s why folks have to increasingly defend their automobiles, pick up trucks, cash savings, and homes against the State’s attempt to seize them as “contraband.”  And, even this would somewhat more palatable and understandable if there were underlying criminal charges involving the property.  But, increasingly, there’s not.  Forfeiture cases are increasingly being filed even when there is no criminal charge arising from the seizure.

 Again, Mr. Petrocelli writes:

 ”In a civil forfeiture case the government only has to prove (by the preponderance of the evidence) that the item was used or obtained illegally. To seize an item, the government must show a “substantial connection” between the item and criminal activity. Most agencies find civil forfeiture the easier path. It has been estimated that more than 85 percent of civil forfeitures are not accompanied by criminal charges.”  (Emphasis added.)

 So, the second issue is very simply: why should we allow our government to seize and attempt to forfeit property when there is no or insufficient evidence of a criminal offense in which the property is involved?  (If there was sufficient evidence of a crime involving the property, then that crime should and would be charged, don’t you think?)

 The majority of forfeiture cases don’t even involve underlying criminal charges.  That means the State is pursuing a citizen’s property in forfeiture even when it doesn’t accuse a citizen of a crime.

 Mr. Petrocelli is correct in one respect, however.  Civil forfeiture is an “easier path” than trying to prove a criminal charge.  In Texas, the State only has to prove the “contraband” issue “by a preponderance of the evidence,” not the more rigorous “beyond a reasonable doubt” standard.  So, the State can allege that criminal conduct occurred to justify the seizure and forfeiture, but rather than having to prove “beyond a reasonable doubt” that a crime was committed, it need only show that there is a “preponderance of the evidence” that a crime occurred and that the property sought to be forfeited was “substantially connected” to that criminal conduct.

 Opponents of forfeiture reform invariably argue that it is a necessary “tool” for law enforcement to “fight crime.”  Even if that were true, shouldn’t forfeiture be limited to those situations where the State has actually charged a person with a crime, and proved that crime, beyond a reasonable doubt?

 If forfeiture was about “fighting crime,” you would think so.