The demands on police have never been higher. Departments are expected to provide a wide array of protections and services and divergent groups expect excellent police service. As other social services are cut, police are forced to deal with an ever expanding litany of problems. And police departments are being forced to do all this on smaller budgets.
The frustration of being asked to do more with less is multiplied when police see the resources available to criminals. Illegal activities generate huge amounts of untaxed incomes, and criminals may flaunt gains with an extravagant lifestyle while also re-investing in their criminal enterprises.
You may have found yourself wondering, "Where can we find the funds necessary to fight such a well-equipped enemy?" One answer is to take the funds from the criminals.
Applicable Laws
Asset forfeiture laws allow for the seizure of property connected with criminal activity. With the proper law enforcement steps, this seized property can eventually be subject to forfeiture.
While primarily designed to weaken criminal organizations by striking at their economic foundation, as an ancillary effect these laws have allowed police departments to generate revenue from the seized assets. These revenues have then been repurposed to fight the war on crime. As we all know, fighting crime, specifically drugs, is time-consuming, labor intensive, and expensive. Forfeiture can help your agency offset these costs.
Asset forfeiture allows for the seizure of any property obtained through ill-gotten gains. All contraband is subject to forfeiture. Being that no one can legally own contraband, no one can make a legal claim to it. Property is also subject to forfeiture if it is the proceeds of criminal behavior or is used in a criminal endeavor. Not only is contraband subject to forfeiture, but any items that were obtained through criminal activity can also be forfeited.
"Derivative contraband" describes legal items that are closely connected to illegal activities. Examples include scales for weighing drugs and motor vehicles with hidden compartments. These items used to facilitate crime can be confiscated if they are "used or intended to be used in any manner or part to commit or facilitate the commission of a violation" (21 U.S.C. 881(a)(7).
Criminal and Civil Forfeiture
There are several different types of asset forfeiture available, but law enforcement agencies generally use one of two methods: criminal forfeiture and civil forfeiture.
Criminal forfeiture accompanies a criminal conviction. If a convicted person's property was the fruits of criminal behavior, the property can be seized. This type of forfeiture is less common than civil forfeiture for several reasons. One reason is the burden of proof is higher in a criminal case (beyond a reasonable doubt) than in a civil case (preponderance of the evidence). Also, for a criminal forfeiture to take place, it must be listed as a sentencing sanction in the criminal statute.
In a civil forfeiture case the government only has to prove (by the preponderance of the evidence) that the item was used or obtained illegally. To seize an item, the government must show a "substantial connection" between the item and criminal activity. Most agencies find civil forfeiture the easier path. It has been estimated that more than 85 percent of civil forfeitures are not accompanied by criminal charges.
[PAGEBREAK]Adoptive Forfeiture
There are hundreds of complicated state and federal laws governing the forfeiture of property. For this, and several other reasons, it is often best for a local police department to team up with a federal agency in a forfeiture case. This process is known as adoptive forfeiture.
By working with a federal agency, your department can foster an environment of cooperation that could be useful for other cases. Your department gains the benefit of the federal agency's experience, as well as its personnel, resources, and expertise. The federal agency usually takes 20 percent of the forfeited property for its efforts.
The adoptive forfeiture process begins when your local department submits a request for adoption. The request is reviewed by the appropriate federal agency. If the case is adopted your local agency must abide by several regulations, including how the forfeited assets can be used.
For the most part it must be agreed that your department will use forfeited assets to enhance its crime fighting mission. This can be done by obtaining more resources and conducting more investigative activities. Such money can be spent on:
- purchasing equipment
- paying overtime
- improving police facilities
- conducting training
- building detention facilities
- conducting D.A.R.E. programs
It's also important to be aware of what forfeited funds cannot be used for. They can't be used to pay the salaries of existing positions or for political or personal purposes. And forfeited property cannot be used by non-law enforcement personnel for non-law enforcement purposes. This probably goes without saying, but it would also be considered inappropriate to use forfeited funds in an extravagant or wasteful way.
An important point to note: Forfeited funds must increase or supplement resources but can never replace them. For example, if an agency receives $100,000 in forfeited funds a city council could not turn around and cut the department's budget by $100,000.
[PAGEBREAK]Designing a Forfeiture Program
Designing a forfeiture program should be a relatively painless task if only because so many programs are up and running. Of course, each department will have to deal with issues endemic to the community, but a large scale model should be available. Almost every state police agency has worked with a federal agency on an asset forfeiture case. Consulting the state police may be a good first step.
Another initial step will be formulating a concise mission statement that will detail the purpose of the forfeiture program. The goal should always be crime reduction; obtaining funds should be secondary. Your police department will probably have to consult with skilled legal counsel to make sure the program conforms to state and federal regulations.
With this conceptual framework in place, your department can begin to take some concrete steps. First, form a planning committee. Represented on the committee should be all stakeholders in the asset forfeiture program. This would include the members of your police department, the city council, the mayor's office, and the city attorney's office. Each member should bring a necessary skill set to the table, as well as comments and concerns that can be addressed at the outset.
At the outset, the planning committee must consider what resources will be necessary to start and maintain the asset forfeiture program. For example, the city counsel will need to make sure local laws are favorable to asset forfeiture. Also, there must be space available to safeguard property until all legal disputes are settled. There is little doubt that for the first few years of the forfeiture program, it will expend more than it will take in. Are all involved parties ready to make this financial commitment?
In addition, members of the committee should have the foresight to anticipate resistance to the program. Historically, asset forfeiture programs have been heavily criticized for causing a conflict of interest between effective criminal enforcement and creative revenue creation. Any time the police are seen to be financially benefitting from any type of enforcement, scrutiny is sure to follow.
Moral Compass
Many concerns over the profit motive of police actions were addressed by the Civil Asset Forfeiture Reform Act of 2000. This act created an innocent owner defense; this protected innocent owners of property whose goods were targeted for seizure.
The act also shifted the burden of proof away from the property owner and forced the government to prove its case. Prior to this change, the owner of property had to prove his or her property was not subject to forfeiture. Now the government must prove by the preponderance of evidence that the property is subject to forfeiture. The Civil Asset Forfeiture Reform Act of 2000 has been very helpful in providing guidance to police departments in matters of implementing an asset forfeiture program.
A helpful tool for police in maintaining a strong moral compass, the National Code of Professional Conduct for Asset Forfeiture was drafted by the U.S. Department of the Treasury's Executive Office for Asset Forfeiture. It contains "10 Commandments" that federal officers should follow in asset forfeiture cases. Another document that can help with the ethics of a forfeiture program is the Guidelines for Civil Asset Forfeiture authored by the National District Attorneys Association.
These documents outline ways to avoid corruption, ensure procedural fairness, and maintain accountability. A common thread in both documents is that the core purpose of an asset forfeiture program is enforcement and not revenue generation.
Asset forfeiture is a valuable tool for law enforcement. It serves as a deterrent to the criminal element; it's a sanction that strikes at the heart of the criminal motive; and it can also help departments secure better equipment and training to continue the important mission of crime suppression. With appropriate attention paid to the overall mission of crime reduction, an asset forfeiture program can be an extremely useful tool for law enforcement agencies of all sizes.
Det. Joseph Petrocelli is a 20-year veteran of New Jersey law enforcement and the author of the books "Anatomy of a Motor Vehicle Stop" and "No One Trips Over a Mountain." You can comment on this article, suggest other topics, or reach the author by sending a message to editor@PoliceMag.com.
