CIVIL ASSET FORFEITURE INFO
Who gets the money from asset forfeitures and how is that money used? These questions and more are answered in a report titled Asset Forfeiture in Texas: DPS and County Interaction. (hereinafter “DPS Report.”) Click here to read the report.
The (Texas) Office of Court Administration (OCA), pursuant to a legislative directive, conducted a study to determine how assets that are seized by DPS in criminal investigations are used and divided by various state and federal authorities. Below is a discussion based on the DPS Report.
WHAT IS ASSET FORFEITURE?
Chapter 59 of the Texas Code of Criminal Procedure authorizes law enforcement officials to seize contraband connected to criminal activity. This law was passed in 1989 and is similar to the federal law on asset forfeiture.
Asset forfeiture is considered a civil proceeding (as opposed to a criminal proceeding). Under the statute, law enforcement files a lawsuit against the asset, i.e., cash, instead of the person. This is why cases are styled “State of Texas vs. $1,523.55” for example. Further, because the proceeding is civil in nature, it means that law enforcement has a lower burden of proof to win—they only need to prove their case by a “preponderance of the evidence,” which is a much lower burden of proof than “beyond a reasonable doubt.”
Another feature of asset forfeiture is that because it is a civil case instead of a criminal case—a person whose assets were seized is not entitled to a court-appointed attorney. As a result, many people do not request the return of their assets because they cannot afford an attorney. [NOTE—there are also criminal forfeiture statutes—such as in RICO prosecutions where prosecutors’ request forfeiture of assets in the Indictment. In these situations—then your criminal defense attorney will help you negotiate the terms of the forfeiture.] Also, under civil asset forfeiture—the government does not have to convict you of a crime to seize your assets.
POTENTIAL FOR ABUSE
According to the DPS Report, most asset forfeitures arise from traffic stops along the major drug-trafficking corridors in Texas. DPS Troopers are trained to aggressively look for signs of people transporting drugs, cash, or other contraband. If a search of the vehicle turns up contraband, then police can seize the contraband as well as the vehicle used to transport it.
The profit margins for these asset forfeitures are substantial:
An estimation of the costs borne by DAs indicates that forfeiture cases can be hugely profitable [omitted]. The cost of criminal prosecution in an average case is about $702, while average DA revenues exceed $15,000, leaving prosecutors in a position to make a significant profit.” See DPS Report, P. 34.
These profits can be used for legitimate purposes such as: (1) equipment; (2) supplies; (3) travel; (4) conference or training fees; (5) investigative costs; (6) crime prevention or treatment programs; (7) facility costs; (8) legal fees; and (9) bar dues.
Agencies are also required to file annual reports on how they spent seized funds. But it is relatively easy for these agencies to camouflage inappropriate use of seized assets. The DPS Report acknowledges this potential: “[I]t remains relatively easy to obscure questionable uses of money and as a result it is difficult to prevent abuse.”
In short, the high profit margins for law enforcement agencies and the ease with which inappropriate spending can be hidden create a perfect atmosphere for abuse. Abuses have been documented in an article titled “Stop and Seize” written by Michelle Sallah, Robert O’Harrow Jr., and Steven Rich of the Washington Post.
WHERE DOES THE MONEY GO?
DPS has two options on how to proceed with seized assets. DPS can refer the case to the local District Attorney’s (DA) Office; or refer the case to the Department of Justice (DOJ). Under the first scenario, DPS gets a cut of the funds if the person whose assets were seized defaults. Under the second scenario—the funds are distributed at the discretion of the DOJ.
Not surprisingly, DPS refers most of its cases to the local DA rather than the DOJ. However, in some instances where there are significant assets, DPS refers the case to DOJ for enforcement. When this happens, DPS can then apply for “Equitable Sharing” application to get a percent of seized assets from the DOJ.
In short—civil asset forfeiture laws were created to deprive criminals of proceeds from their wrongdoing. However, the asset-forfeiture-statutes also present a significant potential for abuse by law enforcement to seize funds in order to supplement their operating budget.
If you have had your assets seized by law enforcement, then it is important that you consult with an attorney to protect your interests.
GENARO R. CORTEZ