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Civil Forfeiture in Law Enforcement: An Effective Tool or Cash Register Justice?
EDITOR'S NOTE: The changing nature of criminal conduct has necessitated innovative law enforcement responses. Patterns of criminal enterprise have heralded the advent of new criminal laws, especially federal and state Racketeer Influenced Corrupt Organizations {RICO) Acts, to attach greater penalties to ongoing offenses. The rewards available to modern-day criminals have led law enforcement officials and prosecutors to explore new methods of seizing the proceeds of criminal behavior. To this end, federal and state civil forfeiture laws have sprung up with a single purpose: to reduce the financial incentives associated with criminal conduct. But our dilemma: are these laws good business practices on the part of law enforcement or do they foster turnstile justice?
Carl W. Hawkins, Jr. is Captain with the Hillsborough County Sheriff's Office in Tampa, Florida. He has twenty-three years of law enforcement experience and has worked in every administrative and operational assignment at the sheriff's office. During 1996, he was awarded a Community Policing Fellowship to the National Center for State, Local, and International Law Enforcement Training at the Federal Law Enforcement Training Center, Glynco, Georgia. He holds a Doctor of Public Administration (1982) and a Master of Science in Criminal Justice (1977) from Nova Southeastern University and a Bachelor of Science in Criminal Justice (1974) from the University of South Florida. He is a graduate of the 18th Session of the Senior Management Institute for Police at the Police Executive Research Forum, the 76th Administrative Officer's Course of the Southern Police Institute at the University of Louisville, and the 77th Delinquency Control Course of the Delinquency Control Institute at the University of Southern California.
Thomas E. Payne began his career in public service twenty years ago when he was appointed Deputy Sheriff with the Harrison County, Mississippi, Sheriff's Department. During the course of his career, he has served as an agent with the Mississippi Bureau of Narcotics; a District Attorney's investigator; Director of the Public Advocacy Division of the Mississippi Attorney General's Office; chief counsel with the Mississippi Bureau of Narcotics; and Assistant United States Attorney for the Southern District of Mississippi. He currently coordinates the Criminal Justice Programs for all coast campuses for the University of Southern Mississippi. Dr. Payne has a Master of Science in Criminal Justice and a Ph.D. from the University of Southern Mississippi in Adult Education with an emphasis in Criminal Justice and a Juris Doctorate from the University of Mississippi.
AN EFFECTIVE TOOL
CARL W.
HAWKINS, JR.
The only thing necessary for the triumph of evil is for good men to do
nothing.
--Edmund Burke (1729-1797)
Forfeiture is a legal procedure in which the government may take, without compensation, property derived from or used in a criminal activity. Its use as a sanction aims to strip criminals such as racketeers and drug traffickers of their economic power because traditional forms of imprisonment and fines are inadequate to deter or punish immensely profitable illegal activity. The seizure of property or assets aims to reduce the profitability of crime and to curtail the financial ability of criminal organizations to continue their operations (Seigel, 1995).
There are two general types of forfeiture: criminal and civil. Criminal forfeiture is in personam, that is, against the person. It can only be used after the property owner has been convicted of certain crimes. Civil forfeiture, however, is in rem, or against the thing. It is directed at property and assets that have been used illegally. Civil forfeiture is normally based on the "guilt" of a piece of property and is separate from any criminal proceedings directed against the property owner. Therefore, the guilt or innocence of the property owner is not considered during the forfeiture process. The rationale for the use of civil law forfeiture is that property can be "guilty" if it was used directly in or in some way facilitated the commission of a crime. The property is then subject to "arrest," or seizure. Under many forfeiture laws, seizure of an item of property requires only probable cause that the property was involved in illegal activity (Aylesworth, 1992).
Property subject to civil forfeiture often includes vehicles used to transport contraband, equipment used to manufacture illegal drugs, cash used in illegal transactions, computer and technology used to further a crime, and property purchased with the proceeds of a crime. The government must always post notice of the seizure proceedings so parties with an interest in the property may contest the~forfeiture (Seigel, 1995).
Forfeiture is not a new sanction. During the Middle Ages, "forfeiture of estate" was required in most felony convictions. The Crown would seize all of a felon's real and personal property. The common-law concept of "corruption of blood," or "attaint," prohibited the felon's family from inheriting or receiving the property that was obtained illegally because a criminal could have no power over the property because he never enjoyed it (Fried, 1988).
In this commentary, the advantages of having and continuing the use of civil forfeiture as an effective tool in law enforcement are examined. Even though many critics in the media and legal arena advocate the abolition of its practice, there are many effective uses for this law enforcement adjunct. This article presents a strong argument for its continued use, reviewing its many advantages, and concludes with a summary of some recommendations to prevent its abuse.
The Advantages of Civil Forfeiture for law Enforcement
Civil forfeiture is an extremely effective tool in disrupting and dismantling an organized criminal enterprise. As the criminal justice system continues to focus criminal sanctions primarily on individual offenders, criminal networks remain untouched while retaining millions of dollars in profits. Though there are many critics of civil forfeiture, the huge profit-motivated transactions in drug and other forms of racketeering are abundantly clear. As of fiscal year 1994, forfeitures in net deposits to the United States Department of Justice's Asset Forfeiture Fund reached nearly $4 billion (U.S. Department of Justice, 1995). This money represents the goods and property typically retained in one form or another by a criminal enterprise. By dismantling the organization and removing the profit incentive to operate, many forms of illegal activity can be reduced in size and scope.
What are some of the advantages in continuing the use of civil forfeiture in law enforcement? The first is the deterrent effect on criminality. The basic idea of deterrence is that, by punishing one person, we dissuade others from committing future acts. Deterrence assumes that prospective offenders engage in a rational process of determining whether the expected costs associated with the punishment of a given crime are sufficient to offset its expected rewards and thus prevent its future commission (Wilson & Petersilia, 1995). Does the criminal justice system provide a deterrent effect on criminality? As a result of improvements in the record-keeping technology of prosecution over the past twenty years, we have learned a great deal about what happens between arrest and final case disposition. For adults arrested for felony crimes, of every one hundred cases considered for prosecution, an average of only thirty-three result in a conviction, and most of those are settled through reduced plea bargaining and jail terms of less than a year (Wilson & Petersilia, 1995). Most criminals arrested are not prosecuted or convicted, nor do they serve any length of time in prison.
So what deterrent effect does the criminal justice system have on criminality? It appears very likely. By taking property and other goods through civil forfeiture, the deterrent effect of this action removes the rewards associated with crime and thus prevents such illegal activities in the future. According to Attorney Chris Sabella of the Hillsborough County, Florida, Sheriff's Office Forfeiture Unit, "These criminals will plead guilty to their criminal charges without hesitation but, on the seizure of their car, they'll fight with everything they have. They know that sometimes a plea in their criminal case will not affect their life as much as losing their means of committing the crime" (Personal interview, 1997).
Another advantage for continuing the use of civil forfeiture is the remedial effect on criminality. The underlying rationale for remediation is to create a financial disincentive, to protect the public from the harm of illicit monies, and to compensate public and private losses caused by conduct giving rise to forfeiture (U.S. Department of Justice, 1996). Civil forfeiture allows the court to take away the illegal tools used to commit crime. During the days of prohibition, removing the alcohol stills and liquor created a financial disincentive for bootleggers to operate. It cost the bootlegger additional money to continue the operation. The purchase of equipment and supplies to manufacture alcohol products financially cost the bootlegger something. The use of forfeiture was viewed as protecting the public from the harm of illicit alcohol. Even though prohibiting alcohol may have been very unpopular, the use of forfeiture was extremely effective in disrupting the criminal network. A more contemporary view of remediation occurs in New York, where persons arrested for drunk driving risk having their automobiles seized under the state's civil forfeiture law. The new law allows state prosecutors to confiscate cars involved in felony drunk-driving cases, sell them at auction, and give the proceeds to the victims of the crime; Texas enacted a similar law in 1984 (Seigel, 1995).
An additional advantage for continuing the use of civil forfeiture is the ability to save the taxpayer money in financing and equipping a police agency in its fight against crime. Most law enforcement agencies cannot afford to purchase the type of highly technical equipment needed to counter the technology of a criminal enterprise. The needs for sophisticated surveillance equipment, computers, motor vehicles for undercover operations, and other extraordinary purchases can explode a government budget. By using the criminal's property and money to finance the non-operating expenses of a police agency, criminal enterprises can be dismantled with the use of their own illegal resources and property. We can enhance the criminal investigation process by providing the tools needed to improve the investigation and subsequent prosecution of drug dealers and other racketeering enterprises.
Still another advantage for continuing the use of civil forfeiture is the improvement of officer morale and motivation. Most officers are frustrated by the criminal justice system and its lack of deterrent and remedial effect on crime and criminals. Officers see criminals arrested day after day, with very little, if any, punishment occurring to these criminals in our system of justice. Crime does pay, and it pays very well. By taking property and the illicit means for criminals to operate, officers can see the immediate effect their actions can have on the offender. Officers also can use the property seized to help investigate and dismantle the criminal enterprise. Police agencies now can be equipped to compete with the technology and equipment used by the criminal. Frustrated officers become satisfied officers. They see the immediate results of their action on crime.
The final advantage of continuing the use of civil forfeiture is the self-supporting nature and financial self-sufficiency of a forfeiture unit. By seizing property and other goods used by a criminal enterprise, a forfeiture unit can pay for itself without burdening the taxpayer for its continued operation and investigations. Salaries and equipment and vehicle purchases all can be paid out of the seized assets. Attorney salaries and time also can be reimbursed. If created properly, the forfeiture unit costs the taxpayer very little while supporting the agency in the battle it wages against crime and criminal.
Even with the advantages of civil forfeiture, there have been problems in its application. Some agencies confiscate large sums of property for minor offenses without considering the proportionality principle of the law. Other agencies use the incentive of obtaining property and goods as its goal, rather than dismantling and disrupting a criminal enterprise. All of these have occurred, and some safeguards are needed in practice. But the extent of reform called for by critics is not in line with the benefits derived from its current use and practice.
Ensuring the Future of Civil Forfeiture in Law Enforcement
To ensure the future of civil forfeiture, law enforcement should consider adopting some reforms to its current program and practice. What began as a good idea--and it still is--needs some small adjustments. These suggestions, I believe, will improve civil forfeiture for the future.
The first change is to improve the training of officers in the statutory requirements of civil forfeiture. This training should be conducted in conjunction with education about the agency's current procedure/policy on seizing property under this law. Consideration should be given to training the officer alongside the local prosecutor and forfeiture attorney to prevent improper seizures.
The second change is to encourage in-depth preseizure planning to identify and protect innocent owners and to avoid seizing assets that will ultimately be returned to the owner. By making this change, the innocent owner does not lose his or her property, and the effort should preclude the dismissal of weak cases.
The third change is to encourage the arrest of the offender, whenever possible, in addition to seizing the assets. This switch in policy direction eliminates the claim of seizure without arrest and wards off the charge of asset hunting.
The fourth change is to develop a publicized policy for the use and disposal of the proceeds of the forfeiture. Included in the policy is a regularly scheduled, independent audit of the program, with the reporting of the findings released for public inspection.
The final change is to develop an accurate database on all seizures and forfeitures, as well as an articulated justification for confiscating criminal assets. This information is extremely helpful during an audit of the program and can answer immediately any allegations of abuse of forfeiture.
By making these adjustments to civil forfeiture, law enforcement will stem the tide of complaints leveled against this effective tool. It is much wiser to improve on civil forfeiture than to totally remove this practice from law enforcement's arsenal. Crime should never pay, and civil forfeiture has many advantages for law enforcement in disrupting and dismantling a criminal enterprise. Fix it, don't eliminate it!
REFERENCES
Aylesworth, G. N. (1992). Forfeiture of real property: An overview. Police Executive Research Forum, 14, 1 64.
Fried, D. J. (1988). Rationalizing criminal forfeiture. Journal of Criminal Law & Criminology, 79, 32& 436.
Sabella, C. (1997). Personal interview. July 31, Tampa, Florida.
Seigel, L. J. (1995). Criminology: Theories, Patterns and topologies. St. Paul, MN: West Publishing Company.
U.S. Department of Justice. (1995). Audit report: Asset forfeiture program--Annual financial statement. Washington, DC: Criminal Division, Asset Forfeiture and Money Laundering Section.
U.S. Department of Justice. (1996). State and local law enforcement asset forfeiture training curriculum module 1: Introduction to forfeiture. Washington, DC: Criminal Division, Asset Forfeiture and Money Laundering Section.
Wilson, J. Q., & Petersilia, J. (E:ds.). (1995). Crime. San Francisco, CA: Institute for Contemporary Studies.