Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?
On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar and grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border. They made the trip every April, at the first signs of spring, to walk the local wild flower trails and spend time with Henderson’s father. This year, they’d decided to buy a used car in Linden, which had plenty for sale, and so they bundled their cash savings in their car’s center console. Just after dusk, they passed a sign that read «Welcome to Tenaha: A little town with BIG Potential!»
They pulled into a mini-mart for snacks. When they returned to the highway ten minutes later, Boatright, a honey-blond «Texas redneck from Lubbock,» by her own reckoning, and Henderson, who is Latino, noticed something strange. The same police car that their eleven-year-old had admired in the mini-mart parking lot was trailing them. Near the city limits, a tall, bull shouldered officer named Вarty Washington pulled them over.
He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.
No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.
Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.
The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Hendersonfit the profile of drug couriers: they were driving from Houston, «a known point for distribution of illegal narcotics,» to Linden, «a known place to receive illegal narcotics.» The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)
The countyʼs district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for “money laundering» and “child endangerment,« in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. «No criminal charges shall be filed,» a waiver she drafted read, «and our children shall not be mrned over to CPS,” or Child Protective Services.
»Where are we?« Boatright remembers thinking. “Is this some kind of foreign country» where they’re selling people’s kids off?» Holding her sixteen-month-old on her hip, she broke down in tears.
Later, she learned that cash for free dom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country, «Be safe and keep up the good work,» the city marshal wrote to Washington, following a raft of complaints from out of town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband.
Outraged by their experience in Tenaha, Jennifer Boatright and Ron Henderson helped to launch a class action lawsuit challenging the abuse of a legal doctrine known as civil asset forfeiture. «Have you looked it up?» Boatright asked me when I met her this spring at Houston’s H&H Saloon, where she runs Steak Night every Monday. She was standing at a mattress size grill outside. «It’ll blow your mind.»
The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime. In Tulsa, Oklahoma, cops drive a Cadillac Escalade stencilled with the words «THIS USED TO BE A DRUG DEALER’S CAR, NOWIT’S OURS!» In Monroe, North Carolina, police recently proposed using forty four thousand dollars in confiscated drug money to buy a surveillance drone, which might be deployed to catch fleeing suspects, conduct rescue missions, and, perhaps, seize more drug money. Hundreds of state and federal laws authorize forfeiture for cockfighting, drag racing, basement gambling, endangered fish poaching, securities fraud, and coundess other misdeeds.
In general, you needn’t be found guilty to have your assets claimed by law enforcement, in some states, suspicion on a par with «probable cause» is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.
One result is the rise of improbable case names such as United States v. One Pearl Necklace and United States v. Approximately 64,695 Pounds of Shark Fins. (Jennifer Boatright and Ron Henderson’s forfeiture was slugged State of Texas v. $6,037.) «The protections our Constitution usually affords are out the window,» Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert, observes. A piece of property does not share the rights of a person. There’s no right to an attorney and, in most states, no presumption of innocence. Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of their seized goods. Washington, D.C., charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve.
The tangled nature of the process became clear when I spoke to Nelly Moreira, a stout, curly-haired custodian who lives in Northwest D.C. Moreira relied on her 2005 Honda Accord to drive from her early morning job, cleaning Trinity Washington University, to her evening job, cleaning the U.S. Treasury Department. In March, 2012, her son was driving her car when he was pulled over for a minor traffic violation, and, after a pat down, was found to have a handgun. He was arrested, and her car was seized, Moreira, who grew up in El Salvador, explained in Spanish that she received a letter in the mail two months later asking her to pay a bond of one thousand and twenty dollars which she took to be the fee to get her car back. Desperate, she borrowed cash from friends and family to cover the bond, which is known in D.C. law as a «penal sum.» If she hadn’t, the car would have been auctioned off, or put to use by the police. But all that the money bought her was the right to a complex and slow moving civil forfeiture court case.
She was left struggling to make her car payments each month as her Honda sat in a city lot, unused and unsheltered from the elements. The bond, the loans, and the public transportation costs added up. «There were days I didn’t have a good meal,» she told me in February, sitting beneath her daughter’s quinceanera portrait in her narrow fuchsia-painted row house.
The Public Defender Service for the District of Columbia won the release of Moreira’s car last summer, and in May filed a lawsuit against the city on behalf of approximately three hundred and seventy-five car owners like Moreira. Describing the policy as «devastating for hundreds of families who depend on their cars for many of the urgent and important tasks of daily life,» it called for higher standards of proof and the end of penal-sum fees. At a public hearing on July 11th, D.C.’s attorney general, Irvin Nathan, acknowledged «very real problems» relating to due-process rights. But he warned that millions of dollars raised by forfeiture «could very easily be lost» and «an unreasonable burden” placed on his office if the reforms supported by the Public Defender Sendee were enacted. He proposed more modest changes that would leave the current burden of proof untouched.
«We all know the way things are right now budgets are tight,» Steve Westbrook, the executive director of the Sheriffs’ Association of Texas, says. «It’s definitely a valuable asset to law enforcement, for purchasing equipment and getting tilings you normally wouldn’t be able to get to fight crime.» Many officers contend that their departments would collapse if the practice were too heavily regulated, and that a valuable public safety measure would be lost.
But a system that proved successful at wringing profits from drug cartels and white-collar fraudsters has also given rise to corruption and violations of civil liberties. Over the past year, I spoke with more than a hundred police officers, defense attorneys, prosecutors, judges, and forfeiture plaintiffs from across the country. Many expressed concern that state laws designed to go after high-flying crime lords are routinely targeting the workaday homes, cars, cash savings, and other belongings of innocent people who are never charged with a crime.