Legal Plunder

How does law enforcement finance operations? Increasingly, police departments across the country pay for their activities, equipment and supplies by seizing the assets of people who have never committed a crime. It’s a process called civil forfeiture, and it’s at best, controversial. At worst, it provides direct monetary incentive for states and the federal government to steal property from innocent citizens. Gives a whole new meaning to Bastiat’s “legal plunder.”

Radley Balko explains how civil forfeiture perverts the “protect and serve” motto by introducing a profit motive:

“The Crime Control Act did a few things,” says the Virginia-based defense attorney David Smith, author of the legal treatise Prosecution and Defense of Forfeiture Cases. “First, it corrected some poor drafting in the earlier laws. Second, it created two federal forfeiture funds, one in the Justice Department and one in the Treasury. And most important, it included an earmarking provision that gave forfeiture proceeds back to local law enforcement agencies that helped in a federal forfeiture.”

This last bit was key. “The thinking was that this would motivate police agencies to use the forfeiture provisions,” Smith says. “They were right. It also basically made law enforcement an interest group. They directly benefited from the law. Since it was passed, they’ve fought hard to keep it and strengthen it.”


Some police agencies come to view forfeiture not just as an occasional windfall for buying guns, police cars, or better equipment, but as a source of funding for basic operations. This is especially true with multijurisdictional drug task forces, some of which have become financially independent of the states, counties, and cities in which they operate, thanks to forfeiture and federal anti-drug grants.

In a March report, the Institute for Justice examined the various states’ forfeiture laws. Only Maine received an A-, because Maine pays forfeitures into the state’s general fund, not directly to law enforcement agencies. This reduces, but doesn’t eliminate, the perverted incentives. Particular low lights from the report:

•    Six states earned an F and 29 states receive a D for their laws alone.
•    Lax federal laws earn the federal government a law grade of D-.
•    Eight states receive a B or higher for their laws:  Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont.  But extensive use of equitable sharing pulls down the final grades of five of those states:  Indiana (C+), Maryland (C+), Missouri (C+), North Carolina (C+) and Ohio (C-).
•    The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia, Michigan, Texas, Virginia and West Virginia.  Each received overall grades of D-.

There’s plenty more procedural nonesense wrapped around this issue, like the names of cases (for example, U.S. v. One 1987 Jeep Wrangler), but the main issue is that policy has perverted the relationship between the public and public servants. It’s the same problem facing taxpayers and unions, or politicians and the electorate. When the government is an interest group, it’s only the government interests that get served.