Forfeiting justice in Texas

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In October 2007, law enforcement officials in Tenaha, Texas, pulled Roderick Daniels over for allegedly traveling 37mph in a 35mph zone. Upon discovering $8,500 in cash that the Tennessee man had planned to use to buy a new car, the officers took Daniels to jail and threatened to charge him with money-laundering unless he turned over the cash. Intimidated by police and 600 miles from home, Daniels surrendered his property even though he was guilty of no crime. For people living in or even driving through Texas, this nightmare is increasingly common.

Through a scheme called civil asset forfeiture, law enforcement agencies confiscate property such as homes, cars and cash that they merely suspect may be connected to a crime. Civil forfeiture differs greatly from criminal forfeiture. With criminal forfeiture, it is the owner who is on trial, and the property can be forfeited only if the owner has first been convicted of a crime. But with civil forfeiture, the government proceeds against the property directly under the legal fiction that the property somehow acted to assist in the commission of a crime. Thus, the owner need not be convicted or even charged with any crime to lose his property.

Texas is among the worst abusers of forfeiture in the nation, with laws that fail to protect innocent citizens and instead encourage the pursuit of revenue over the pursuit of justice. And, as my co-author Scott Bullock and I detail in our new report — Forfeiting Justice: How Texas Police & Prosecutors Profit from Seizing Property — Texas law enforcement agencies’ use of these laws is extensive and growing. From 2001 to 2007, law enforcement forfeited cash and properties worth at least $280 million. In that time, forfeiture proceeds nearly tripled from about $21 million in 2001 to more than $57 million in 2007.

Texas statutes allow law enforcement agencies to keep 90 percent of forfeiture proceeds. Agencies have spent hundreds of millions of dollars on everything from office renovations to equipment to trips. Nearly a quarter of expenditures from 2001 to 2007 went toward salaries and overtime pay for employees in local police departments, county sheriffs’ offices and district attorneys’ offices.

Because Texas’ statutes let law enforcement agencies benefit directly from the proceeds of forfeiture, it creates incentives for them to pursue actions that will result in the greatest revenue, often at the expense of innocent owners. But people should not lose their property without being convicted of a crime, and law enforcement should not be able to gain financially from other people’s property.

Texas’ perverse incentive scheme and the unjust burdens placed on innocent owners violate the due process guarantees of the U.S. and Texas constitutions. That’s why the Institute for Justice is currently litigating a major constitutional challenge to Texas’ civil forfeiture laws on behalf of an innocent property owner in Houston. Without constitutional constraints on civil forfeiture, police and prosecutors will be free to cash in at the expense of the innocent.

Dick Carpenter serves as the director of strategic research for the Institute for Justice. He works with IJ staff and attorneys to define, implement and manage social science research related to the Institute’s mission.