Sunday, March 15, 2009

Reining in asset forfeiture abuses

With so many Texas law enforcement agencies having become overly dependent on asset forfeiture income to make ends meet, last Sunday, Howard Witt the Chicago Tribune focused on an example that's almost a caricature of that trend: the East Texas town of Tenaha, where black motorists were allegedly threatened with criminal prosecution if they didn't sign over their property.

After the Texas Senate Criminal Justice Committee examined the problem in an interim study, Chairman John Whitmire last week filed SB 1529 to reform the state's asset forfeiture laws. The bill forbids:
  • prosecutors as well as police from requesting or inducing someone to sign a waiver of property rights until after forfeiture proceedings have been initiated in court.
  • using forfeiture funds for campaign contributions, alcohol, judicial training, or donations to nonprofits unrelated to public safety.
  • a retiring official from spending money (as happened with the Harris County Sheriff) on their way out the door without approval by the commissioners court
The bill also requires a more detailed reporting of expenditures from seized assets, empowers the state auditor to audit and investigate expenditures of seized funds, and instructs the attorney general to initiate court proceedings against an entity in possession of seized assets if they violate the law. The AG may seek a civil penalty up to $100,000 against a "law enforcement agency or attorney representing the state" for such violations.

These additions give some much-needed teeth to the asset forfeiture statute since its provisions until now have basically been unenforceable. As Sen. Whitmire told the Chicago Tribune:
"The law has gotten away from what was intended, which was to take the profits of a bad guy's crime spree and use it for additional crime-fighting," Whitmire said. "Now it's largely being used to pay police salaries—and it's being abused because you don't even have to be a bad guy to lose your property."
Regrettably, the legislation stops short of requiring a criminal conviction before assets may be seized, which would be my preference, but it will at least provide more documentation about seized funds, restrict documented abuses, and create an enforcement provision, erecting new barriers to the kind of shakedowns described in East Texas.

See related Grits posts:

19 comments:

Anonymous said...

Grits: Reminds me of Rick Roach, the DA from Pampa, who also misused proceeds this way and as far as I know is still in the federal pokey. By the way, DA hot check funds are misused as well. By law, who is charged with auditing these funds and where would one (in county government) go to see where these funds are being spent?

Informed Citizen said...

Greg Abbott wants the power that now is in the hands of the Travis County DA department of Public Integrity. Whitmire's bill assumes this transfer of power, proposed by other bills in this session, is a foregone conclusion.

I'm not sure it is a good idea.

WHO is going to police the Attorney General and his HUGE staff?

The Public Integrity Unit of the Travis DA has been ineffective because the Leg has refused to appropriate funding. Only $4 mil a year for an office with statewide jurisdiction over more than 250,000 State Gov employees.

I proposed an INDEPENDENT 'State Integrity Unit' (its not about "public integrity" but integrity of State Gov Actors). Could not find a Legislator to author & sponsor such a bill.

TxBluesMan said...

I feel more comfortable with the AG having it than the Travis County DA...

Anonymous said...

Don't let any forfietures take place without a conviction.

This is unconstitutional.

Anonymous said...

Tx, how would you feel if this unit was given over to the Williamson County DA?

Anonymous said...

Do these people really represents us?

"The law has gotten away from what was intended, which was to take the profits of a bad guy's crime spree and use it for additional crime-fighting," Whitmire said. "Now it's largely being used to pay police salaries—and it's being abused because you don't even have to be a bad guy to lose your property."

Just more grandstanding. Read the law you passed senator. Payment of salaries are permitted.

The bill forbids:
• prosecutors as well as police from requesting or inducing someone to sign a waiver of property rights until after forfeiture proceedings have been initiated in court.
• using forfeiture funds for campaign contributions, alcohol, judicial training, or donations to nonprofits unrelated to public safety.
• a retiring official from spending money (as happened with the Harris County Sheriff) on their way out the door without approval by the commissioners court
Again senator, read the law you passed, don’t leave it up to some staffer to do it for you. All of the above are already prohibited, just not enforced.

The problem with a lot of the Texas CCP is contains a lot of "do not’s," it just doesn’t have enough "or elses."

Anonymous said...

Isn't there a federal Law that covers asset forfeiture and use of funds? Most law enforcement get their drug money from piggy-backing federal agencies cases using money laundering units.

Anonymous said...

'penalty of $100k against an agency'; hogwash, the taxpayers get hosed; penalize the actors jointly and severally and make sure they never have a position of trust again...

TxBluesMan said...

Anon 11:05,

No better. It needs to be a state office, not a county DA, regardless of the county.


Anon 2:16,

Yes, there is a Federal statute on forfeiture, but it deals with it being forfeitures to the Feds, and not state laws dealing with the topic.

Anonymous said...

Your right 4:56, the taxpayers are the one that are going to get hosed if a civil penalty is imposed on the agency.

Anonymous said...

"By law, who is charged with auditing these funds and where would one (in county government) go to see where these funds are being spent?"

8:16 that would be the County Auditor See Texas Attorney General Opinion GA-0053

http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2003/htm/ga0053.htm

You can make an open records request to see where the funds are being spent.

Anonymous said...

If they don't make it illegal unless there's a criminal conviction it will keep reappearing in different forms.

Why is the legislature not requiring criminal conviction - anybody know?

Anonymous said...

It's my opinion that many things "legal" in Texas such as this asset forfeiture without criminal conviction are actually illegal, thanks to constitutional protection and Marbury v. Madison.

I hope this case goes to the Supreme Court. It's obvious what they'll decide - and it won't be in favor of the police departments robbing travelers.

Anonymous said...

"Isn't there a federal Law that covers asset forfeiture and use of funds? Most law enforcement get their drug money from piggy-backing federal agencies cases using money laundering units."

Yes, but all it states is that the forfeited funds be used for a "law enforcement purpose."

Local and state law enforcement agencies have several ways they can get around state forfeiture laws and they do frequently.

First way is to have the FEDS adopt a forfeiture. FEDS keep 20% and the state and local gets 80%. Like state law, all you need is preponderance (51%); it's a civil procedure; and it's easy.

Second way is to have a member of your PD assigned to a FED task force. Most PD's send their TIRD over there; the Federal agency gets help albeit a TIRD; and the agency gets a % of their overall profit.

There are auditors that work for the US Marshal's service but they don't make waves. These accounts generally have very large piles of money in them and they're used at the discretion of the CHIEF.

In summary, drug dealers and the police have the same motive; money. Whether it is or not is left up to the imagination of the officer who takes it. It's more profitable to exaggerate than tell the truth. Scary

Pamela Clifton and Christie Donner said...

I'm fighting this tooth and nail in Colorado right now. We passed the forfeiture bill in 2002 and now the cops are coming after the money. Good Luck Texas!

Anonymous said...

6:25 is right on. Local agencies will go the federal route where there are virtually no strings attached. Some already doing it now.

kaptinemo said...

In Merrye Olde England, it was unsafe to travel the roads because of the criminal 'highwaymen'. Such 'freelance socialists' would demand that you 'stand and deliver' your valuables, or risk death.

Nowadays, the role has been taken over by The State, whose minions, armed with both a weapon and a badge, are doing the exact same thing to any who are unfortunate enough to fall into their hands. Whether they are actually guilty of a crime or not.

And police have the temerity to wonder aloud at the growing distrust and hatred of them?

There's a good reason why 'asset forfeiture' had remained an unused tool from Revolutionary times to the 1980's, and that was because of the GLARINGLY OBVIOUS POTENTIAL FOR ABUSE. Which opponents of the practice pointed out long before it was so short-sightedly implemented. But thanks to the anti-drug hysteria of the 1980's and the seeming desire to appear 'tough on crime!', those warnings were shouted down. And now we have messes like Tenaha all over the country. All very predictable. So nobody with three brains cells to click together should be surprised.

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Anonymous said...

CNN/360 Anderson Cooper ran a story last week about the racket in Kimble County, Texas, where the DA takes the judge who hears the cases to Hawaii, and gives the judge thousands of dollars. The piece is still on CNN/360's website, titled "Good Cop/Bad Cop." The Texas AG will do nothing. The AG is worthless.