Asset Forfeiture Creates 'Perverse Incentive To Police For Profit'
In November, Mooresville police seized nearly $17,000 from Jermaine Sanders on the mere suspicion that he got the money by selling drugs.
"They searched the vehicle without a search warrant, and without his consent, they seized that money," said Sanders' Statesville attorney Ashley Cannon.
Sanders was charged with two misdemeanors: possession of less than one-half ounce of marijuana and possession of drug paraphernalia. He was not charged with dealing drugs. Despite two judges repeatedly ordering the town to return the money, the town has so far refused, arguing the seizure was legal.
The process by which town police seized the cash is called civil asset forfeiture, and it's perfectly legal thanks to an equitable sharing program that allows local law enforcement to partner with the federal government. Police can seize cash or other assets on the suspicion that its tied to criminal activity, and it falls to the citizen to then challenge the seizure.
"There was no proof at the time that this happened, that this money was in any way tied to any criminal activity," said Cannon. "So it's sort of like, 'We're going to take your property, your assets, your money, and you're going to have to prove to us why we shouldn't be able to keep it'."
Across the state, local and state law enforcement agencies seize $15 million per year on average from citizens, according to data from the Institute for Justice, a libertarian-leaning law firm.
"Civil forfeiture turns the presumption of innocence on its head, and effectively forces property owners to prove their own innocence in order to get their property back," said Dan Alban, an Institute for Justice senior attorney and the co-director of the National Initiative to End Forfeiture Abuse. "That's a tremendous violation of people's due process rights."
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There's a wrinkle that makes North Carolina stand out. There actually exist state laws that protect citizens. And by state law, any funds seized must go to fund schools. In fact, the Institute for Justice gives North Carolina a B+ for its laws, one of the highest in the nation.
But there's a huge loophole. Through the equitable sharing program, local police can partner with federal law enforcement.
"And this literally allows police to not follow the law of their own state, and instead, follow federal forfeiture law, which is quite permissive," said Alban.
The federal government then shares 80% of the seized property back with the local agency.
"That creates a perverse incentive to police for profit," said Alban. "And we want to put an end to that so that people have a fair shake, and aren't being treated poorly by somebody who has a financial incentive to do so."
In the past two decades, North Carolina law enforcement agencies have seized not a single dollar by using the state program. However, they've seized nearly $300 million through the federal equitable sharing program — an average of $15 million per year, according to Institute for Justice figures.
It's a statistic that didn't surprise Elliot Abrams, a Raleigh attorney with Cheshire Parker Schneider who has represented people who have had their cash seized.
"If you were operating a state or local agency, why would you ever follow the North Carolina law here when it's more difficult, and you don't get to keep the money?" he said.
In an average year, more than 100 law enforcement agencies in North Carolina participate in the equitable sharing program. This includes large organizations like the State Highway Patrol and police departments from the large metro cities, down to small town police forces and county sheriff offices.
Responding to questions about the use of the program, N.C. State Bureau of Investigation Public Information Director Anjanette Grube said the SBI " does not use the federal equitable sharing program to circumvent state laws. Whether the seizure is reviewed under the state or federal system is determined by the circumstances of each case and who the investigating agencies are."
When asked why asset forfeitures through the state's program would not show up in the Institute for Justice database, Grube wrote, "Since we did not provide the information in the IJ database, we cannot comment on it one way or the other."
When asked to provide examples when it has used the state's asset forfeiture process, Grube wrote, "That information is included in our criminal investigative files and would not be a public record."
Because officers can seize money purely on the suspicion that it's connected to criminal activity, it gives police broad latitude, which ends up impacting those at the low ends of the income spectrum, said Abrams.
"Basically, if people who appeared to be without substantial means are found with almost any amount of currency, this program basically gives the power to state and local law enforcement officers to take your cash," he said.
Then, the citizen has to try to prove innocence, instead of the other way around. Abrams said he sees many cases where people have cash seized while traveling on the interstate to or from an auto auction. If a person brought cash, but decided to not buy a vehicle, a police officer might not believe the traveler was headed to an auction and seize the cash.
What's more, the burden of proof in these kinds of cases is lower for the government. In a criminal case, prosecutors must prove guilt beyond a reasonable doubt. Since these are civil cases, police must prove only that it's more likely than not that the cash is tied to crime. And in any case, taking on the federal government is an expensive proposition to begin with.
"The incentive structure is such that most people would rather just walk away from $2,000, then have to hire a lawyer and pay the lawyer $1,500, to now try to get back $500 ahead," said Abrams. "It's economically just not feasible."
Advocates say the North Carolina legislature could pass an anti-circumvention law that prohibits local agencies from using the equitable sharing program. The North Carolina Task Force for Racial Equity in Criminal Justice recommends stricter limits on the use of the program. But without legislative action, it would fall on local law enforcement agencies to stop using the program voluntarily, or for a major shift in federal policing policy.