GRASSROOTS/Hank Kalet

Forfeiting Our Rights

Imagine this scenario: You are driving east on Route 80 somewhere in the Midwest. You’re minding your own business, listening to music or a discussion on the radio, when you notice red lights flashing in your rear-view mirror. You look down at your speedometer and see you’re doing 80 mph, 15 mph above the posted speed limit. You pull onto the shoulder and get your documents in order.

Imagine further that you are carrying a large quantity of cash – it doesn’t matter why. You are black – or Latino or Asian. You have out-of-state plates.

When the officer asks for your license and registration, he also asks you where you are going and what you might be carrying in your car.

“Any fire arms?” he asks. No.

“Any drugs?” No.

“How about a large quantity of cash.” You pause, taken aback. You answer, yes and stammer out an explanation. He asks you to step out of the car. He asks permission to search your vehicle, adding that he is asking out of courtesy. He tells you he has probable cause to search and then does so. He finds nothing, aside from the cash, which you have in an envelope tucked in a pocket of your messenger bag. He takes the cash and then escorts you to a police station.

You are released several hours later, without charges. But the police keep your money, or perhaps your car, claiming it under a state forfeiture law that allows law enforcement to seize personal property – money, electronic equipment, cars, houses – that police believe may have been used in the commission of a crime. And unless you are willing to go through a lengthy and convoluted process to retrieve it, law enforcement gets to keep the bounty.

This is not just a thought exercise – the Washington Post in September published a long enterprise piece called “Stop and Seize” that includes multiple accounts on which my thought exercise is partly based – but a reality for so many. This so-called “stop and seize” tactic is part of a larger system of law enforcement abuse, which includes the use of excessive force, the targeting of minority communities, racial and ethnic profiling, stop-and-frisk practices, spying on activist and ethnic groups, the militarization of police departments, and so on.

It’s important to make clear that I am not anti-police. Most officers do their jobs conscientiously; what bothers me is the apparatus we have erected, which gives police too much power.

Forfeiture laws essentially gut Fourth and Fifth Amendment prohibitions against unreasonable search and seizure and the taking of property without just compensation. Not so, says the Supreme Court, which has upheld most forfeiture laws over the years, which indicates how deep the cancer is.

Many critics have focused on the likelihood of abuse. There have been many stories about forfeiture being used to fund police departments and other law enforcement functions, which shifts alters the law-enforcement function, adding an economic incentive into the mix that does not belong. Law enforcement officials dispute this, arguing that forfeiture is purely about deterrence and preventing criminals from using ill-gotten gains to defend themselves in court.

The bigger issue, however, is that logic behind forfeiture laws is bizarre – essentially assuming that the property has committed the crime, which then allows law enforcement and the courts to pretend that taking property does not violate anyone’s due-process rights.

I’ve described it this way in the past: as an extra-legal measure – “legal, to be sure, but existing outside regular due process.” Someone accused of a drug offense, or even a traffic violation, has the right to plead his or her case in court with the prosecution being forced to prove guilt beyond a reasonable doubt. The burden of proof is on the prosecutor and the state. In most forfeiture cases, however, the burden of proof is on the person whose assets have been seized.

A first step was taken in January, when US Attorney General Eric H. Holder Jr. put severe restrictions on the federal forfeiture law, banning local and state law enforcement agencies from relying on federal statute to seize property unless criminal charges have been filed. The Washington Post called it “the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.”

While this is good news, we have to remember that there have been efforts at reform over the years, scotched by law-enforcement lobbies. What we also need to realize is that more than reform is necessary. Forfeiture – because of the violence it does to the Bill of Rights — needs to end.

Hank Kalet is a poet and journalist in New Jersey. Email, grassroots@comcast.net; blog, www.kaletblog.com; Twitter, @newspoet41; Facebook, facebook.com/hank.kalet.

From The Progressive Populist, February 15, 2015

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