Playing Both ‘Cops and Robbers’ on Asset Forfeiture

Published June 22, 2016

A new digital system unveiled by Oklahoma government police is just the latest example of civil asset forfeiture laws encouraging cops to become the robbers they’re supposed to be catching.

Since May, the Oklahoma State Highway Patrol has been deploying “Electronic Recovery and Access to Data” systems. ERADs allow highway patrolmen to use civil asset forfeiture laws to seize individuals’ assets stored in bank accounts or on prepaid debit cards at the press of a button.

Civil asset forfeiture is a legal process by which government law enforcement agents seize private property, including money, believed to have been used in the commission of a crime, even if no criminal conviction has occurred.

Before the 1980s, when there was a brief “tough-on-crime” fad, civil asset forfeiture was relatively obscure. In 1984, Congress passed the Comprehensive Crime Control Act, permitting local and national law enforcement agencies to share the rewards of seized assets and cash with one another. Between the law’s passage and 1993, a total of $3 billion in cash and property flowed through the nationalized Asset Forfeiture Program to local and national law enforcement agencies.

Instead of using civil asset forfeiture as it was originally intended, police in many jurisdictions have used civil asset forfeiture to enrich themselves at the expense of taxpayers.

Studying asset forfeiture rates and law enforcement budgets from government datasets across five states, Harvard School of Public Health professor Katherine Baicker and UC Irvine associate economics professor Mireille Jacobson uncovered an interesting link between asset forfeiture rates and local government budgets. When government police carry out more asset forfeitures, Baicker and Jacobson found, local lawmakers reduce spending on law enforcement, treating the proceeds from law enforcement actions as revenue. In turn, asset forfeiture rates increase, because government police begin treating forfeiture as a fundraising activity.

Baicker and Jacobson write that just as a living thing responds to stimuli, government agencies, such as police departments and county commissioner boards, respond to incentives in complex, interconnected ways.

“Counties and police respond to incentives driven by seizures laws in a sophisticated way that depends both on the reaction of the other party and on the fiscal circumstances that affect their marginal utility of the funds,” Baicker and Jacobson write. “We find that local governments do indeed capture a significant fraction of the seizures that police make by reducing their other allocations to policing, undermining the statutory incentive created by state seizure laws. They are more likely to do so in times of fiscal distress.”

To guard against this unfair and immoral form of taxation, states must reform their laws to require a criminal conviction before private property can be seized and to require that asset forfeiture proceeds be deposited into the general fund, not funneled directly to law enforcement budgets.

Civil asset forfeiture creates too many perverse economic incentives. However well-intentioned the idea may be, the practice of civil asset forfeiture has been corrupted and now infringes on Americans’ right to be free from harassment by money-hungry agents of the government.

The U.S. government’s law enforcement agencies are supposed to be the cops – not the robbers – and it needs to stop now.

[Originally published at the Orange County Register]