As Oklahomans debate civil forfeiture reforms, there have been calls for more facts and fewer hypotheticals. The debate is welcome news as civil forfeiture is one of the biggest threats to property rights in Oklahoma and across the United States today.
Civil forfeiture is a law enforcement tactic that allows police and prosecutors to seize and keep for themselves cash, cars, and even houses, without ever charging—let alone convicting—the owner of a crime. Because the concept of civil forfeiture rests on the legal fiction that property itself is being sued, property owners are afforded none of the usual protections granted under criminal proceedings, such as an attorney or the presumption of innocence. And although this fiction results in some bizarre case names (United States v. $11,000 in United States Currency, State of New Jersey v. One 1990 Ford Thunderbird, United States v.434 Main Street, Tewskbury, Massachusetts—all cases litigated by IJ) it amounts to little more than a dangerous end run around due process.
Making matters worse, the same law enforcement agencies that seize your belongings often get to keep for their own use your car, your house, your cash or the proceeds reaped from your property’s auctioning. Civil forfeiture makes it easy—and profitable—for law enforcement to permanently take property from the citizens they’re supposed to protect. This creates a perverse incentive to police for profit—not justice.
Nobody should lose their property without being convicted of a crime. But law enforcement agencies across the country have become addicted to civil forfeiture revenue. In Oklahoma, law enforcement says recently-proposed reform legislation authored by State Senator Kyle Loveless is a solution in search of a problem.
Forfeiture abuse in Oklahoma is well-documented. Law enforcement has attempted to forfeit property that should not have been forfeited and forfeiture proceeds have been misspent.
Here’s a rundown:
Julius S. Crooks had more than $7,000 in cash and a semi-automatic rifle seized from him by Caddo County law enforcement, who accused him of carrying drug money, but did not arrest him. When he asked why his money was being taken, he was told, “Get the hell off my freeway and right now!” The Caddo County district attorney later dropped the forfeiture efforts and returned Crooks’ property.
The Goss family of Creek County was arrested on drug charges and had their truck, boat, and firearms seized when deputies mistakenly searched their house due to a wrong address on the warrant. The charges were dropped due to lack of evidence, but the Gosses lost their truck because they couldn’t pay the impounding fee. Right before the arrest, the officer said of the truck, “It’s good. I’m taking it.”
Officer Stephen Mills had a civil forfeiture suit filed against his truck after an employee of his used it—without his knowledge—to steal copper wire. Mills set out to prove his innocence but faced obstruction from the sheriff’s department. Only under media pressure did the department let Mills retrieve his truck.
The record is full of useless and downright inappropriate expenses made through the unaccountable slush fund created by civil forfeiture. Oklahoma law enforcement is not immune to mishandling civil forfeiture funds:
A 2014 audit of Washington and Nowata counties’ DA office found that $5,000 in forfeiture proceeds were used to pay back an assistant district attorney’s student loans.
Back in Caddo County, the district attorney’s drug task force came under scrutiny for sharing 25 percent of forfeiture proceeds with private contractors if the contractors took part in the seizures. The state attorney general investigated the task force after a defense attorney complained that $400 in seized funds went missing. The investigation failed to discover criminal misconduct but “did uncover accounting irregularities that are cause for serious concern.”
Audits done by the Oklahoma State Auditor and Inspector’s Office from 2009 to 2014 turned up numerous instances of seized assets being mishandled:
- Seized money was spent before it was legally forfeited ;
- Seized money was listed as forfeited but forfeiture cases were never filed;
- Seized money was spent on retirement plaques, a retirement party, and doughnuts; and
- After seizure, a truck, money, and guns could not be accounted for.
And a 2009 audit found that a Beaver County assistant district attorney lived rent-free in a forfeited house, in spite of a judge’s order that the house be sold at auction. Okies may prefer to be better known for their famous panhandle, not their panhandling prosecutors.
These are just the cases that have been documented in news outlets. The absence of reporting requirements means there are likely other cases that haven’t received coverage.
The case for forfeiture reform based simply on American values of justice is strong. So is the empirical case.
— Walker Mulley
Walker Mulley is a Maffucci Fellow at the Institute for Justice