I spent most of breakfast today blathering about civil forfeiture. So K claimed I should write an essay about it. I thought that sounded ridiculous, because I figured everyone already knew about it. Indeed, a brief internet search revealed that even John Oliver did an extended piece on it; sure, we don’t have a television, but we have computers and an internet connection, and K often watches John Oliver while pumping milk for N. Maybe it’s just that she’s less angry, in general, than I am, so she’s less compelled to know these things.
But there are a few features of civil forfeiture that I think are particularly funny / horrible.
I’m writing about a world with a criminal justice system rather similar to our own, as in what we have in the contemporary United States, except my world is slightly more logical. Still horrible, obviously, because the horror is, for me, the entire draw toward writing about it… just more internally consistent. As in, yes, black people are still massively over-represented in prisons. But instead of being locked up for drug possession, they’re locked up for “intent to self-harm.” After all, ingesting a drug (and then not driving, operating heavy machinery, etc.) hurts no one but yourself. Ingesting a drug and then driving obviously threatens others, and so should be illegal, but that’s a crime that predominantly white people commit (based on statistics for the ethnicity of those causing alcohol-impared driving fatalities), so it’s possible to get things like the claim that civil forfeiture of an automobile used by a drunk driver is disproportionate to the offense, even though drunk drivers kill people, but civil forfeiture of money (from small amounts of cash scrounged up from the floor of a car in a traffic stop, up to hundreds of thousands of dollars) that police think might be used / has been used to buy drugs, is reasonable. Even though the worst that might happen is the person who volitionally bought the drugs might overdose and die. Unless, of course, that person drives while intoxicated, but dangerous driving should be an offense in itself, without regard for why you’re driving poorly.
To me, outlawing self-harm itself seems more logical than outlawing drug possession. Especially something as innocuous as, say, cocaine. This essay doesn’t condone illegal activity, obviously, but if you were going to take cocaine, you should drink it as a tea, or chew the leaves, practices that’ve been employed safely and responsibly for millennia. Yes, cocaine is bad for you if you purify it and cram it up your nose – but try doing that with caffeine or nicotine. Or, rather, don’t, cause you’ll die.
But it’s perfectly legal to possess purified caffeine, or nicotine liquid, or azeotropic ethanol-water (190 proof – quite easy to drink yourself to death with). Whereas the most serious risk of harm that you’d be courting with possession of cocaine isn’t that you’ll hurt yourself with it, it’s that you’ll get busted and spend time in jail and potentially lose your money and home.
The latter being where civil forfeiture comes in.
Oh, but, right… I’ll get to it in just a moment, I swear!… but here’s one last reference to attempt to show that my internally-consistent world isn’t totally ridiculous. Here’s an opinion piece from the New York Times about the harms caused by suicide being illegal in India.
So, okay… civil forfeiture time! Just a handful of fun facts, presented at random. Because there are other, better resources out there if you’d like to learn about this. Which, you should learn about it. If you live in the United States, that is. Because it’s horrible, and the whole idea of the social contract means that by living here and paying your taxes and being a law-abiding citizen and whatnot, you’re aiding and abetting the practice.
Aw, man. So, despite linking to it in the first paragraph of this, I only now watched the John Oliver piece. And it was nice, but… all the victims are white people?
That’s not exactly the usual outcome of civil forfeiture. Here’s a quote from Sarah Stillman’s article on the practice:
The public records I reviewed support Rulli’s assertion that homes in Philadelphia are routinely seized for unproved minor drug crimes, often involving children or grandchildren who don’t own the home. “For real-estate forfeitures, it’s overwhelmingly African-Americans and Hispanics,” Rulli told me. “It has a very disparate race and class impact.”
And, later in her piece, when discussing a particular district that employed the practice egregiously:
Patterns began to emerge. Nearly all the targets had been pulled over for routine traffic stops. Many drove rental cars and came from out of state. None appeared to have been issued tickets. And the targets were disproportionately black or Latino. A finding of discrimination could bring judicial scrutiny. “It was a highway-piracy operation,” Guillory said, and, he thought, material for a class-action lawsuit.
But that was a daunting prospect. “Class actions involving race discrimination are extremely hard to win,” Guillory said. “Most of them go down in flames.”
Which, right, in that quotation there’s a reference to the fact that race discrimination lawsuits are difficult to win. Often people talk reference the case Los Angeles v. Lyons. A man was nearly killed by the police using a chokehold during a traffic stop, and he attempted to sue for the police to stop using those chokeholds. But even though data existed showing that most of the people these chokeholds were used against were black, and Lyons himself was black, he couldn’t prove that the police would stop and choke him in particular again. Even though the next victim would probably be black, that victim probably would not be Lyons, and so his case was thrown out because he didn’t have standing.
Which, to read more about this and other such horrors, you should look up Michelle Alexander’s “The New Jim Crow.” I wrote one essay that mentioned her work earlier, but I’m not sure if I stridently recommended it when I mentioned it last time. But you should read it. It’s a very scary, very well-written book. I don’t agree with all her conclusions, and I think she leaves out some important information and reasoning, but the legal analysis she does present is very good. And she does so much so well that I can recommend it wholeheartedly despite my contentions.
But the basic idea seems to be roughly that a person needs standing to bring a case, and even when statistics exist to show that an average black male is in danger from a practice, that’s (stunningly, foolishly) discounted as evidence that any particular black male is in danger. So no one has standing.
What often seems to happen is that cash is taken from someone driving – our traffic laws are so horrible that there is always a pretext to stop someone, and as pointed out in Alexander’s book police are also allowed to stop someone if they fit the profile of someone involved in the drug trade, which includes “too scrupulous following of traffic laws.” So if you violate any traffic laws – if you drive 31 in a 30 m.p.h. zone – or if you *don’t* violate any traffic laws, and therefore fit the profile of a drug dealer, you can be stopped. I don’t even look much like the usual victims of these crimes – I have dreadlocks, sure, but also receive all the privileges afforded to those whose ancestors lived in sufficiently mild climates that the genes for melanin production degraded over time. As in, I’m a white dude, having lost one of the evolutionary hallmarks of what makes us human: here’s a quote from Quillen and Shriver’s Nature review on the evolution of skin pigment:
However, not all selective events were recent. For example, patterns of genetic variation at EDN3 support selection on pigmentation in the common ancestors of all humans prior to their divergence. Some researchers have suggested that this may reflect the initial darkening of skin pigmentation in pre-human ancestors as they lost the fur that protects the light skin of our chimpanzee cousins.
But, right, despite my appearance normally giving me all sorts of legal perquisites in this country, I was pulled over in a drug-bust-style stop in Utah. K and I were moving from California so we were driving a Uhaul through, a police officer followed me for two miles, and eventually he pulled me over because I hadn’t signaled for the requisite two seconds before passing a truck – I used my turn signal for only 1.5 seconds before changing lanes.
Not that I should complain much – the cop didn’t steal all our boxes of books, after all – I included the anecdote just as further evidence that if they want to stop you, they will. At least I was given an excuse: members of the community Alice Goffman wrote about in “On the Run” seem to have been stopped and frisked or thrown onto the ground with no rationalization ever given.
So, police officers stop might stop you. Especially if you have dark skin. And then they take your money. Again from Stillman’s article:
Yet only a small portion of state and local forfeiture cases target powerful entities. “There’s this myth that they’re cracking down on drug cartels and kingpins,” Lee McGrath, of the Institute for Justice, who recently co-wrote a paper on Georgia’s aggressive use of forfeiture, says. “In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.” In 2011, he reports, fifty-eight local, county, and statewide police forces in Georgia brought in $2.76 million in forfeitures; more than half the items taken were worth less than six hundred and fifty dollars. With minimal oversight, police can then spend nearly all those proceeds, often without reporting where the money has gone.
So it’s unsafe to have money in your car. But not all people living in this country have equal access to banking facilities. Look, even if I got stopped by a police officer trying to steal my money, all I’d have with me is, what, twenty, thirty dollars? For anything more expensive than that, I pay with a credit card. But if you’re too poor to have credit cards, if nobody’s offering you one of those free-checking-and-a-debit-card bank accounts, then you have to carry cash – it’s the only way you’ll be able to pay for anything. For a family of 2.1, it’s not unusual for us to spend well over a hundred dollars at a time grocery shopping – I’d hate to lose that much money because a police officer decided to steal it from me, and no way could anyone afford to hire a lawyer to get such a small sum back.
To put it more concretely, why don’t I quote a paragraph from a 1999 ACLU letter to Congress regarding civil forfeiture:
One example of the type of case that does not receive publicity is the case of an African-American man from Virginia Beach, Virginia. He was stopped by police on June 16, 1998, while driving from Virginia Beach to Wilmington, Delaware. The police officer who stopped him claimed that a taillight was out, which was untrue. Once stopped, the officer subjected him to a search by a drug dog, claiming that he “looked like a drug dealer.” The officers asked him if he was carrying drugs, guns or money. He replied that he had $3,500 in cash. The officer seized the money, claiming that it must be the proceeds of drug dealing.
And, right, I didn’t mean to get carried away on that tangent about racial profiling. It’s just, I don’t know, I had linked to it so I figured I should watch the John Oliver segment. And it did seem strange to me that everyone shown, in interviews and in the little cartoon graphics and tv-show-like re-enactments, was white.
Because a major reason why civil forfeiture seems so horrible is that cops steal money to use for their own retirement funds or year-end bonuses or luxuries at the office from poor black people. It’s yet more data that gets left out of analyses about how regressive much of the United States tax code is (with the point being that this analysis looks at actual taxation – but when you add in other sources of funding, like civil forfeiture, poor people are paying even more): if the police need more money to do their jobs, why are they stealing it from poor people?
So… this essay is already pretty long, and despite my intent, I haven’t really talked about the particulars of civil forfeiture. But, really, you can read other sources for that. I still think everyone already should’ve heard about it.
Because it is true: civil forfeiture is wacky. It’s legal actions against stuff, like money or homes or possessions … police can take things from your car or home without charging you (or anyone) with a crime … you have to spend large sums of money to get your stuff back, often you have to spend money just to get a hearing to maybe get your stuff back … and your stuff is presumed guilty – you have to show a preponderance of evidence proving that your home or ipad or cash was not involved – or about to be involved – in any crime. Which is ridiculous.
To me, given the way the logic of civil forfeiture works, it seems like if you’re about to spend cash at a fast food restaurant, and the person behind you in line might buy drugs later that night, and your cash would be given to that person as change, a police officer should be allowed to steal your money. Because it’s the physical dollar bill that’d be charged with intent to commit a crime, and, yeah, if that dollar bill would be given in change to someone who would buy drugs with it, then that dollar bill is no less guilty than many other items stolen through civil forfeiture laws.
Frank Brown Cloud 