Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently. And in Indiana, where Anthony Smelley is still fighting to get his money back, forfeiture proceeds are enriching attorneys who don’t even hold public office, a practice that violates the U.S. Constitution.
Because the property itself is on trial, the owner has the status of a third-party claimant. Once the government has shown probable cause of a property’s “guilt,” the onus is on the owner to prove his innocence. The parents of a drug-dealing teenager, for instance, would have to show they had no knowledge the kid was using the family car to facilitate drug transactions. Homeowners have to show they were unaware that a resident was keeping drugs on the premises. Anyone holding cash in close proximity to illicit drugs may have to document that he earned the money legitimately.
When owners of seized property put up a legal fight (and the majority do not), the cases are almost always heard by judges, not juries. In some states forfeiture claimants don’t even have the right to a jury trial. But even in states where they do, owners tend to waive that right, because jury proceedings are longer and more expensive. Federal forfeiture claimants are technically guaranteed a jury trial under the Seventh Amendment, but can lose the right if they fail to reply in a timely manner to sometimes complicated government notices of seizure.
The Supreme Court this spring will rule on Alvarez v. Smith, a challenge to Illinois’ forfeiture statute, which mostly mirrors the 1984 federal law—property can be seized without a warrant, retained using only probable cause; the government can use hearsay, defendants cannot; the burden of proof rests largely on those who have their stuff seized; and even victorious defendants cannot recover court costs or attorney fees.
National Public Radio reported in 2008 that in Kingsville, Texas, a town of 25,000, “Police officers drive high-performance Dodge Chargers and use $40,000 digital ticket writers. They’ll soon carry military-style assault rifles, and the SWAT team recently acquired sniper rifles.” All this equipment was funded with proceeds from highway forfeitures.
Texas prosecutors benefited too. Former Kimble County, Texas, District Attorney Ron Sutton used forfeiture money to pay the travel expenses for him and 198th District Judge Emil Karl Pohl to attend a conference in Hawaii. It was OK, the prosecutor told NPR, because Pohl approved the trip. (The judge later resigned over the incident.) Shelby County, Texas, District Attorney Lynda Kay Russell, whose district includes Tenaha, used forfeiture money to pay for tickets to a motorcycle rally and a Christmas parade. Russell is also attempting to use money from the forfeiture fund to pay for her defense against a civil rights lawsuit brought by several motorists whose property she helped take. In 2005, the district attorney in Montgomery County, Texas, had to admit that his office spent forfeiture money on an office margarita machine. The purchase got attention when the office won first place in a margarita competition at the county fair.
But here, too, things aren’t always as they seem. In Missouri, for example, forfeited property is supposed to go to the state’s public schools. But in 1999 a series of reports in The Kansas City Starshowed how Missouri police agencies were circumventing state law. After seizing property, local police departments would turn it over to the DEA or another federal agency. Under federal law, the federal agency can keep 20 percent or more of the money; the rest, up to 80 percent, goes back to the local police department that conducted the investigation. None of the money in these cases goes to the schools.
The Kansas City Star investigation made national news at the time, but Kessler says the practice of circumventing earmarking through federal “adoption” is now common all over the country. “It happens a lot,” he says. “It clearly goes against the intent of the state legislatures that passed these laws, but I don’t know of any state that has made a serious effort to prevent it from happening.”