WEBVTT NOTE Erratic Enforcement: A Survey of Asset Forfeiture Practices in Missouri 1 00:00:00.000 --> 00:00:06.700 What I'm going to talk to you about is asset forfeiture. How many people in this room have ever heard of civil asset forfeiture? 2 00:00:06.700 --> 00:00:14.900 Okay, well, most people, you don't get that big of a response. Most people have not heard of civil asset forfeiture, 3 00:00:14.900 --> 00:00:21.000 so I'm going to briefly explain what it is for any of you who do not know exactly what it is. 4 00:00:21.000 --> 00:00:26.100 Basically, it is a legal process that allows the government to take your stuff, 5 00:00:26.100 --> 00:00:30.580 and they don't have to have had they now this is different from criminal forfeiture 6 00:00:30.580 --> 00:00:38.340 in that they do not have to convict you of a crime in order to take your stuff all they have to do 7 00:00:38.340 --> 00:00:45.300 is show that it's more likely than not that your property was involved in a crime and if you don't 8 00:00:45.300 --> 00:00:51.140 contest it they don't even have to do that because if they take your stuff and then they have it and 9 00:00:51.140 --> 00:00:56.140 And it's just too costly for you to go fight the government, which most of the time it is, 10 00:00:56.140 --> 00:01:01.140 then they can just take it and they don't have to ever go to court to prove anything. 11 00:01:01.140 --> 00:01:08.140 So the idea for civilized forfeiture goes back quite a ways. It actually goes back to biblical times. 12 00:01:08.140 --> 00:01:16.140 There was a concept known as deodans, basically where they thought that any property involved with a crime was, in essence, haunted. 13 00:01:16.140 --> 00:01:35.140 So if a sword was used to kill somebody, people believed that that sword was then infused with that spirit and it couldn't rest until you brought the sword to the king and he would have to either destroy the sword or do something for the good of the community with it and then that spirit could be laid to rest. 14 00:01:35.140 --> 00:01:43.140 And so the idea was always that the property was somehow tainted by the crime that it was involved with. 15 00:01:43.140 --> 00:01:49.140 But in the American context, basically it has been a tool of the drug war. 16 00:01:49.140 --> 00:02:02.140 So in the 1970s, the Drug Abuse Prevention and Control Act, this is what first allowed law enforcement to start seizing property that was involved in the drug trade. 17 00:02:02.140 --> 00:02:09.140 the Federal Reserve, fiat money, fractional reserve banking, Human Action and State, The Theory of Money and Credit 18 00:02:32.140 --> 00:02:41.020 keeps about up to 15% or more of the proceeds and up to 85% of the proceeds of that sale 19 00:02:41.020 --> 00:02:46.960 can then be kicked back to the local or state law enforcement agency that made the initial 20 00:02:46.960 --> 00:02:47.960 seizure. 21 00:02:47.960 --> 00:02:50.980 So I think, you know, I'm in a room with a bunch of economists, I think we can all see 22 00:02:50.980 --> 00:02:54.440 the sort of incentives that are at work here. 23 00:02:54.440 --> 00:02:59.100 If you're a law enforcement agency and you have to make a budget, you have every incentive 24 00:02:59.100 --> 00:03:09.100 Civil Forfeiture of Missouri 25 00:03:29.100 --> 00:03:35.020 go to the law enforcement agencies. So what does the law enforcement agency response to 26 00:03:35.020 --> 00:03:39.180 that? Well, we're just not going to forfeit anything to the state law. We'll bring in 27 00:03:39.180 --> 00:03:46.180 federal, either the FBI or the DEA or some federal agency and use them to make equitable 28 00:03:47.580 --> 00:03:54.580 sharing and so that way they can get the money back as opposed to giving it to the schools. 29 00:03:54.580 --> 00:04:24.580 and so there's a series of articles were run on the St. Louis Post-Dispatch uncovering all this back in the early part of the last decade so the early 2000s and it became a pretty big scandal and they decided that they were going to try to do some reforms so at the state level some of those reforms first 1993 they forbade any forfeiture unless the person was convicted of a felony charge and then in 1999 30 00:04:24.580 --> 00:04:31.540 In 2000, a bunch of more articles in the Kansas City Star showed that forfeiture funds were 31 00:04:31.540 --> 00:04:37.460 not going to schools but back to the police. So then in 2001, there was a reform law that 32 00:04:37.460 --> 00:04:44.460 said that if the state wanted to seize anything from you, it had to, they defined seizure 33 00:04:44.860 --> 00:04:51.540 in such a way that essentially you couldn't take anything for any length of time until 34 00:04:51.540 --> 00:04:58.540 The Federal Reserve, fiat money, fractional reserve banking, Human Action, Man Economy and State, The Theory of Money and Credit 35 00:05:21.540 --> 00:05:28.620 Back in 2001, and that culminated with the passage of CAFRA, the Civil Asset Forbiture 36 00:05:28.620 --> 00:05:35.620 Reform Act, and this allowed for an innocent owner defense, so if you could show that, 37 00:05:35.620 --> 00:05:40.420 you know, while the property may have been used in a crime, you had no knowledge of that, 38 00:05:40.420 --> 00:05:46.520 so hypothetically, if someone stole your car and then used it to sell drugs, if the police 39 00:05:46.520 --> 00:05:49.520 If you ever found that car, they could still take the property. 40 00:05:49.520 --> 00:05:55.520 Well, with an innocent owner defense, they would then have to give the car back to you. 41 00:05:55.520 --> 00:06:02.520 So that's some kind of defense against asset forfeiture, but it's still not a ton. 42 00:06:02.520 --> 00:06:10.520 And also, it provided counsel for any low-income defendants who, if their house was being forfeited, 43 00:06:10.520 --> 00:06:18.120 and also if it's your house that is being forfeited, you can still live in it up until the point that they actually prove the forfeiture. 44 00:06:18.120 --> 00:06:26.920 Anything but your house, they can just take and keep it until you win the case or, you know, if you don't win, you'll never get it back. 45 00:06:26.920 --> 00:06:38.920 Nonetheless, though, federal forfeiture has skyrocketed since then, so it was $338 million in 1996 and we were up to $1.3 billion by 2008. 46 00:06:38.920 --> 00:06:45.920 That is in constant, I believe that's in constant 2008 dollars, by the way, so... 47 00:06:46.760 --> 00:06:52.560 Alright, so, what Caffer did not change. Basically, police still have the incentive to forfeit 48 00:06:52.560 --> 00:06:58.000 through federal law because equitable sharing still exists. The state's burden of proof 49 00:06:58.000 --> 00:07:03.320 at the federal level is still the relatively low preponderance of the evidence. So as opposed 50 00:07:03.320 --> 00:07:08.200 to a criminal law, criminal lawsuit where you would have, you'd have to prove beyond 51 00:07:08.200 --> 00:07:12.800 and a reasonable doubt. In this case, it's just a preponderance of the evidence, so it's 52 00:07:12.800 --> 00:07:17.840 a much lower standard for the state to prove. They can also use what are called forfeiture 53 00:07:17.840 --> 00:07:23.520 waivers, where they say, okay, so we believe that you may have committed a crime, but we 54 00:07:23.520 --> 00:07:28.720 don't have the actual evidence to prove that. However, we can charge you, and you'll have 55 00:07:28.720 --> 00:07:34.000 to go through court and all that, and so what we're going to do is we're going to give you 56 00:07:34.000 --> 00:07:47.000 This property isn't mine, I don't know where it came from, and I'm giving it up right now, and that way we will not charge you with a crime. 57 00:07:47.000 --> 00:07:53.000 This is basically extortion for all intents and purposes. 58 00:07:53.000 --> 00:07:59.000 In Missouri, I'm going to now go through a lot of the data that we've collected. 59 00:07:59.000 --> 00:08:29.000 The use of federal forfeiture has increased, but not state forfeiture, which is not surprising given the incentives that are at play here, so they passed these state level reforms, the use of federal forfeiture dropped by nearly half, at least initially, and then state forfeiture proceeds, sort of remained flat, and then the use of forfeiture bounced back really heavily, 60 00:08:29.000 --> 00:08:59.000 And particularly, right around the time of the recession in 2007, 2008, we think that's no coincidence, we haven't shown anything causally there yet, but we think it stands to reason that a bunch of police departments were hurting for cash and then started, went out and started looking for money wherever they could find it, asset forfeiture was a way that they could do that. And so, yeah, Missouri is increasingly relying on these 61 00:08:59.000 --> 00:09:05.240 Federal Forfeiture Funds. You can see Missouri compared to all the other surrounding states. 62 00:09:05.240 --> 00:09:12.240 So Missouri is the, let's see, a light blue line there. And so the use of it has gone 63 00:09:15.920 --> 00:09:20.760 up immensely. Only Iowa down there, the sort of purple one, has had that increase at the 64 00:09:20.760 --> 00:09:27.760 same amount, but certainly not at the same, you know, we're still at a much higher level. 65 00:09:27.760 --> 00:09:32.520 So, and here's forfeitures per capita for all these states. 66 00:09:32.520 --> 00:09:37.080 Missouri and Nebraska are the two worst out of all of them. 67 00:09:37.080 --> 00:09:42.200 And so about $3 per resident is lost in federal forfeitures 68 00:09:42.200 --> 00:09:43.840 every year in Missouri. 69 00:09:43.840 --> 00:09:47.640 So that's not a ton of money, but that's a lot of money 70 00:09:47.640 --> 00:09:49.800 per, you know, when we multiply it out, 71 00:09:49.800 --> 00:09:52.240 that's about $18 million a year in Missouri. 72 00:09:52.240 --> 00:09:55.520 So it's fairly substantial. 73 00:09:55.520 --> 00:10:00.660 and the police departments are pretty creative in the ways they can work around the state 74 00:10:00.660 --> 00:10:08.080 forfeiture law. So one thing that the St. Louis City was doing a few years back was 75 00:10:08.080 --> 00:10:14.060 that they were towing all these cars that were for minor infractions and then they were 76 00:10:14.060 --> 00:10:21.480 giving the cars to a towing agency that would then hold them and basically the towing agency 77 00:10:21.480 --> 00:10:25.960 and the City Police Department were splitting the money and the Towing Agency was also 78 00:10:25.960 --> 00:10:32.960 allowing the police officers and relatives of police officers to then use those cars 79 00:10:33.320 --> 00:10:40.320 as personal vehicles until people could pay to get them back. This was eventually exposed 80 00:10:40.600 --> 00:10:46.600 by a series of articles in the Post-Dispatch and you can see the reports that we have showing 81 00:10:46.600 --> 00:11:03.600 In 2007, there were 934 seized, 593 in 2008, and then the towing scandal was exposed in July 2008, and immediately the number falls to one. 82 00:11:03.600 --> 00:11:06.600 So it's pretty clear what was going on here. 83 00:11:06.600 --> 00:11:33.600 and also I should emphasize that even the 593 number, that was more than the rest of the state was towing, more than the rest of the state was seizing in terms of vehicles combined, so it was just an obvious flaw that no one was even paying attention to, but it was right there in front of anyone's faces if they had actually cared to look at the reports. 84 00:11:33.600 --> 00:11:43.600 Also, so a lot of these people that have stuff forfeited from them are never convicted or in some cases never even charged with a crime. 85 00:11:43.600 --> 00:11:54.600 So in 2007, there were 612 forfeitures, 253 of those people, there were either no criminal charges filed or they were found innocent. 86 00:11:54.600 --> 00:12:17.600 595, 2008 versus 278, innocent or no charges, 554 to 262. So, we're always looking at about, you know, somewhere around over a third of these people are never charged or found innocent of the crimes that the property is supposedly connected with. So, that's a pretty big problem. 87 00:12:17.600 --> 00:12:25.560 Okay, and we also have a vast, vast difference in the way that the counties are interpreting 88 00:12:25.560 --> 00:12:32.120 these laws. Some counties are actually interpreting them in a pretty good way. So the state statute 89 00:12:32.120 --> 00:12:37.920 reads that the property of persons arrested, detained, sorry it says detailed, but detained 90 00:12:37.920 --> 00:12:43.920 or apprehended and not subsequently charged is not subject to forfeiture for that arrest, 91 00:12:43.920 --> 00:12:46.640 Attention or Apprehension. 92 00:12:46.640 --> 00:12:52.440 And so, Boehm County, where the University of Missouri, where Per is, that's probably 93 00:12:52.440 --> 00:12:54.640 one of the best ones. 94 00:12:54.640 --> 00:13:00.480 The average delay between filing for forfeiture and filing of criminal charge there is 4.2 95 00:13:00.480 --> 00:13:01.480 days. 96 00:13:01.480 --> 00:13:07.160 However, the longest delay, 535 days, so, you know, looking at a year and a half. 97 00:13:07.160 --> 00:13:12.320 But then compare that to Franklin County, which is just south of St. Louis County, and 98 00:13:12.320 --> 00:13:18.120 Your average delay between seizures and filing a criminal charge or dismissal is 342 days. 99 00:13:18.120 --> 00:13:24.680 That's the average. So, you know, they seize your stuff and then they wait around, don't 100 00:13:24.680 --> 00:13:29.860 file criminal charges, and take almost a year to give you your stuff back after finally 101 00:13:29.860 --> 00:13:36.080 deciding not to charge you. And the longest delay was 711 days. There was a criminal charge 102 00:13:36.080 --> 00:13:40.000 ultimately filed there, but it took them almost two years to get around to filing the criminal 103 00:14:10.000 --> 00:14:18.000 The federal law has all the perverse incentives in it, so local law enforcement agencies can just go that route and take people's property. 104 00:14:18.000 --> 00:14:24.000 And so one of the things that we should look at doing is removing that financial incentive. 105 00:14:24.000 --> 00:14:29.000 Now, there's nothing that prevents a locality from telling their police department, 106 00:14:29.000 --> 00:14:34.000 look, for every dollar that you seize and get from the federal forfeiture fund, 107 00:14:34.000 --> 00:14:38.000 we're going to offset your budget by taking a dollar away from you. 108 00:14:38.000 --> 00:15:08.000 and that can actually be an attractive solution to a lot of localities because they're trying to save money as well so they can just say, well, you know, we're not going to give you any money if you keep relying on asset forfeiture for your dollars and that has been shown in the literature to reduce the amount of forfeitures that happen. And then also if a defendant's property is held for an unreasonable amount of time, I think anything over a couple of months is, you know, 109 00:15:08.000 --> 00:15:13.200 ," obviously pretty unreasonable. That person should be compensated for the loss of their property. 110 00:15:13.200 --> 00:15:19.320 And then, forfeitures should not be a substitute for criminal law, and by that I mean they 111 00:15:19.320 --> 00:15:24.040 shouldn't have these waivers where they can just say, oh well, we don't want to charge 112 00:15:24.040 --> 00:15:29.480 you with a crime, we would just rather take your stuff. If they have the evidence to charge 113 00:15:29.480 --> 00:15:33.640 you with a crime, they should have to go ahead and charge you and fight that battle in a 114 00:15:33.640 --> 00:15:43.140 in a court where the burden of proof is reasonable doubt, not preponderance of the evidence. 115 00:15:43.140 --> 00:15:47.920 And finally, Boone and Buchanan County serve as models for the rest of the state of Missouri 116 00:15:47.920 --> 00:15:56.360 because they actually seem to take the law at its letter and at its spirit and try to 117 00:15:56.360 --> 00:15:59.120 enforce things the way they should be. 118 00:15:59.120 --> 00:16:01.160 So that is pretty much it. 119 00:16:01.160 --> 00:16:06.840 And I can, if anyone is interested afterwards, I can email you a copy of this paper. We're 120 00:16:06.840 --> 00:16:11.800 still sort of going through the editing process, but we're looking for comments from people 121 00:16:11.800 --> 00:16:16.840 who, you know, are familiar with economics and know the literature and that sort of thing. 122 00:16:16.840 --> 00:16:19.840 So we would love to hear back from you. All right. Thank you very much.