Civil asset forfeiture is nothing short of policing for profit. The concept of the government seizing personal property and assets for charged and uncharged criminal activity is a growing criminal enterprise at both the federal and state level.
Writing in the December 7, 2018 edition of the Texas Tribune, Edgar Walters and Jolie McCullough reported that Texas law enforcement seized more than $50 million in people’s property in 2017.
The Texas civil asset forfeiture statute can be found in Chapter 59 of Title 1 of the Code of Criminal Procedure under the heading “Forfeiture of Contraband.”
This draconian law was enacted by the Texas Legislature in 1989. It gives the police the power to act as highwaymen, legally strong-arming thousands of Texas citizens out of their personal property without an iota of proof that they had ever committed a crime—property that includes homes, cars, trucks, tractors, jewelry, clothing (including the shoes on one’s feet), cash (even the change in a child’s piggy-bank), and any art hanging on the walls.
This statute has drawn the ire and criticism of a majority of the justices on the Texas Supreme Court. In recent years there have been bipartisan efforts to reform the statute.
In 2015, thirteen bills were introduced by Republican and Democratic lawmakers calling for reforms in the way civil asset forfeitures are handled. They all died in committee.
And, in 2017, State Senator Konni Burton (R-Colleyville) and others introduced bills that would have repealed the civil asset forfeiture statute and required that all asset forfeiture be handled through the state’s criminal forfeiture statute which provides more due process protections. Her bill also died in committee, and her efforts may have played a role in her defeat during her reelection bid last month.
Texas Receives D+ for Forfeiture Process
These reform legislative efforts were vigorously opposed by law enforcement agencies and various district attorneys. Cities and counties around Texas receive roughly $30 million each year from the federal government as part of a forfeiture partnership with a U.S. Justice Department program called the Equitable Sharing Program. This money has routinely been misused by public officials for their own private economic interest. The corruption associated with this program and individual programs set up exclusively under Chapter 59 has been so bad that the Institute for Justice has given Texas a D+ in its handling of civil asset forfeitures.
In the upcoming 2019 legislative session, Sen. Chuy Hinojosa will once again try to reform the state’s civil asset forfeiture process. His proposed legislation would limit the seizure of homes and vehicles when drugs or cash is found inside the residence or vehicle. He has been joined by Rep. Terry Canales (D-Edinburg) who has proposed legislation that raises the proof bar from a “preponderance of the evidence” to “clear and convincing” evidence before civil asset forfeiture can occur without a criminal conviction.
Beneficiaries of Civil Forfeiture Block Reform
These proposed pieces of legislation will face the same stubborn and self-serving opposition from the police and prosecutors as the reform efforts faced in the 2017 legislative session. In their Tribune piece, Walters and McCullough pointed to some of the voices in the ranks of the reform opposition:
- Jackson County Sheriff A. J. “Andy” Louderback: “We’re sitting here at the tip of the spear of [drug] cartel activity, and we need asset forfeiture as a tool. It’s a viable tool that we’re not misusing … There’s accountability in the system that’s been there for a very long time.”
- Smith County Sheriff Larry Smith: “Many times in my law enforcement career, we could not have been effective in doing away with gangs, drug cartels and whatever without civil asset forfeiture. Many times forfeiting civil assets is the only way you’re going to get to the kingpin of the operation.”
We doubt seriously if Sheriff Smith has ever seen a “kingpin” of any sort in Smith County. Law enforcement officials like Sheriffs Smith and Louderback peddle the drug cartel fear-mongering because they have a cash cow in civil asset forfeiture they don’t want to lose.
And they will probably be able to once again stall any civil asset forfeiture reform in the state’s upcoming legislative session. They have strong support at the federal level.
President Trump and his Justice Department announced a new policy last year that helps state and local law enforcement like Sheriffs Smith and Louderback to steal cash and property they “suspect” was involved in some uncharged criminal activity. The Trump policy reversed an Obama policy that placed serious restrictions on civil asset forfeiture because of its constant and repeated abuses by state and local law enforcement agencies across the nation.
Seizures Rise to 4.5 Billion
Walters and McCullough pointed out that thirty years ago the U.S. Justice Department seized less than $100 million. By 2014, the seizure amount rose to $4.5 billion.
Today civil asset forfeitures fund as much as 40 percent of county and local law enforcement agency budgets in Texas. This despite the fact that 80 percent of Texans oppose civil asset forfeiture without a criminal conviction, according to the Texas Public Policy Foundation.
Texas Gov. Greg Abbott and Lt. Gov. Dan Patrick have both remained silent on the issue of civil asset forfeiture reform. This indicates, to us at least, that they don’t want to offend the law enforcement community while at the same time taking notice of the increasing number of Texas voters who are fed up with the highway robberies being carried out without due process by the state’s law enforcement community through civil asset forfeiture.
The U.S. Supreme Court will for the first time in twenty years decide in its current term whether civil asset forfeiture laws violate the Eighth Amendment to the U.S. Constitution.
Perhaps if the Court declares the process unconstitutional Abbott and Patrick will find their voices, if only burgeoningly.