Jason Pye | April 7, 2016
After a months-long trip to visit extended family in Cincinnati, Charles Clarke was approached by local law enforcement while preparing to board a flight home to Orlando. A tip from a ticket agent, who claimed that Clarke’s bag smelled like marijuana, had spurred the encounter.
The officers, who were working with the Drug Enforcement Administration, began quizzing Clarke, a 22-year-old African-American and college student, on his travel plans. They also asked him if he was carrying cash. Believing he had nothing to hide from law enforcement, Clarke consented to a search of his carry-on bag.
Clarke was carrying approximately $11,000 in cash, money he had obtained through legal means, including his job and student loans. Before taking his trip, he had decided to bring the money with him because his mother, whom he lives with, was moving and Clarke did not want his money to be lying around for movers to find.
“I asked them if they searched my [checked] bags, and they told me yes and that they didn’t find anything,” Clarke said in a video released by the Institute for Justice, the libertarian public interest law firm that is representing him in federal court. “And to prove the fact that I didn’t have anything, I let them search my carry-on. And they didn’t find anything. I didn’t have any drugs on me, anything at all, and they still took my money.”
Carrying cash for domestic travel, of course, is not a crime. But federal civil asset forfeiture laws, as well as most state statutes, create perverse incentives for law enforcement to take people’s property. Under these laws, state and local law enforcement, working in coordination with federal agencies, can seize money under federal forfeiture law and receive up to 80 percent of the proceeds in return. And, in a distortion of justice, the burden of proof in federal forfeiture proceedings falls on the property owners, not the government. This disproportionately impacts low-income people; as there is generally no constitutional right to an attorney in forfeiture cases, property owners who cannot afford legal representation are often left with no choice but to attempt to represent themselves in court.
Clarke, who was never charged with a drug-related crime, admits to being a recreational marijuana user, but he insists that he is not a dealer. But after more than a year, the federal government is still holding his money, and 13 different law enforcement agencies, including several that were not even involved in the seizure, are lining up to get a cut of the cash through the Justice Department’s Equitable Sharing Program. He may not see again if he cannot prove he obtained the funds through lawful means.
“I saved up the money to use for living expenses and for future savings, and now it is gone,” Clarke said. “After the money was seized, it was very hard for me to make ends meet. I had to borrow money from family, and I was embarrassed. No one should have to go through the nightmare I went through simply because they choose to carry their hard-earned cash.”
Abuse of this pernicious tool tends to impact people of color and the poor the most.
Clarke’s story is all too common. Innocent people are often negatively affected by civil asset forfeiture. Their money, homes, and vehicles can be taken from them without ever being charged with a crime, which can have devastating short- and long-term consequences for already struggling individuals and families.
When people hear stories like Clarke’s—especially those who are learning about civil asset forfeiture for the first time—they are simply stunned. They wonder how this could happen in America, where we are supposed to be innocent until proven guilty.
A FreedomWorks publication offers background on this troubling area of the policing. The report covers the roots of civil asset forfeiture in British admiralty law and the early days of the United States, how it is used today (primarily in the decades-long war on drugs), and the threat it represents to Americans’ due process and property rights.
While civil asset forfeiture can affect any American, abuse of this pernicious tool tends to impact people of color and the poor the most. The Washington Post, in its lauded September 2014 investigative series “Stop and Seize,” examined 400 federal forfeiture cases that were challenged by a property owner. The majority of those who received at least some money back “were black, Hispanic or another minority.”
Likewise, an analysis of Philadelphia law enforcement’s use of civil asset forfeiture released by the American Civil Liberties Union of Pennsylvania found that African-Americans are disproportionately impacted. Researchers discovered that police in the “City of Brotherly Love” bring in $5 million each year through forfeiture of cash and property.
Roughly a third of those whose property is seized are never convicted of a crime—and African-Americans are even less likely to have been convicted. “An estimated 7 out of 10 people whose cash is taken by Philadelphia law enforcement even though they have not been convicted of a crime are African-American,” the report explained. “One explanation for this disparity is that innocent African-Americans are more likely to be subject to unfounded arrests and property seizures in the first place, which then spawn more forfeiture petitions.”
Under Pennsylvania civil asset forfeiture laws, prosecutors need only meet a low standard of evidence to subject property to forfeiture. The burden of proof falls on the property owner. Most walk away rather than fight what could be a costly and lengthy battle to get their property back.
There are legislative remedies to restore justice. Ideally, a criminal conviction would be required before property is seized by law enforcement and the profit motive that often drives seizures would be removed by directing proceeds from forfeitures to a neutral account, beyond the grasp of law enforcement. Importantly, the burden of proof should always—without question—fall on the government.
These steps may not solve all the problems with policing in the United States, particularly as they relate to law enforcement and people of color. But civil asset forfeiture reform could be a good first step toward improving relationships with communities that look skeptically at law enforcement.