I was in the Harris County DA's Office in Houston, Texas from 1980 to 1985. The forfeiture laws came about at the state level just as I was leaving the office. I have defended a number of asset forfeiture cases. The idea of the state forfeiting the ill-gotten gain from drug dealers is, in theory, not a bad idea. It is a potent weapon that allows for the state to remove the economic incentive from drug dealers so they do not calculate how much money will be waiting for them when they get out of prison. It also has the advantage of forcing the cost of enforcement onto the criminals while sparing the innocent taxpayer from paying for enforcement.

The problem is not with the concept, but with the laws and applications that we currently have, that have led to numerous instances of overreach, abuse, bullying and unfairness. Presently, if you are in possession of a large amount of cash, it is presumed to be contraband unless you can prove otherwise. Our entire criminal justice system is predicated on a presumption of innocence that forces the state to carry the burden of proof before a citizen will lose his or her freedom.

The forfeiture laws turned this concept on its head and now the state gets a presumption of illegality in their favor and the burden is on the citizen to prove otherwise. Hence, the problem. Police can seize your $3,000 in cash and you have to come forward and prove where the funds came from. For dollar amounts below $20,000 it is mathematically impossible to pay a lawyer to fight for the money without paying almost as much as the amount of money taken. It is guaranteed lose/lose for the citizen and the government will win every time under these circumstances. You realistically cannot pay a lawyer $20,000 to spend the next year battling in court to get your $20,000 returned.

Police are no different than anyone else. They are competitive and want to win. By adding an economic incentive, they are now becoming mercenaries. We do not have private police forces because we depend on them to be neutral. They get paid a government salary. They make the same no matter the outcome of a criminal case to keep them from becoming biased due to an economic interest in the outcome. This is a crucial aspect of law enforcement because we as a society have so much riding on our police not being corrupt. The forfeiture laws have unfortunately given them an economic incentive that is contrary to our history and social norms. It costs them nothing to seize your money and now you bare the cost of trying to prove the funds are not contraband.

There are some common sense reforms that might allow for forfeiture of contraband without jettisoning our individual rights and being subjected to whimsical harassment by law enforcement. First, there can be no forfeiture unless there is a criminal conviction that is in some way tied to the asset. Second, the presumption that cash is contraband needs to done away with entirely. If the state makes the allegation it is contraband, then the state has the burden of proof, always. Third, the state cannot seize automobiles. In the modern era, no car, no job. Seizing a family’s only form of transportation is bad policy, no matter the rational. There are other hyper technical ideas but this post is already too long.