Cops still take more stuff from people than burglars do

A Facebook post by the Dallas PD promoting the seizure of $100,000 in cash from a woman who has not been convicted or even charged with a crime.

Let’s get one thing out of the way: it’s not normal to stuff $100,000 in cash into a suitcase and then check said suitcase on to a domestic flight. It’s extremely weird, in fact, not something you’d expect a typical person to do in their lifetime.

However, doing so is emphatically not illegal. There’s no law, state or federal, that says you can’t bring as much cash as you want on a flight. If it’s domestic, you don’t even have to declare it. It’s entirely your business! Maybe you won a shitload of money at a casino. Maybe you don’t have good access to a bank. Maybe you need a big cash down payment for some large, totally legal purchase. Again: all very weird situations to be in, but in a country of 330 million people you’re bound to have a bunch of weirdos, just living out their weird lives, not doing anything wrong.

Nevertheless.

On December 2, a cash-sniffing dog with the Dallas Police Department alerted on a suitcase that had been checked in at Love Field for a domestic flight to Chicago. Officers subsequently searched the bag and found over $100,000 in cash inside. According to local press reports, the officers took the cash for themselves without charging its owner, a 25-year-old woman, with any crime or criminal wrongdoing (the press also basically framed it as a feel-good story about a dog, which is a massive institutional failure for another day). They didn’t even arrest her: they just took her cash and sent her on her way.

This process is called civil asset forfeiture, and in practice it often works very similar to highway robbery. Authorities can take literally whatever they want from you — cash, vehicles, your home, your Playstation 5 — and they can keep it, without ever convicting or even charging you with a crime. All they have to do is say they suspect you committed a crime. And here’s the kicker: if you want your stuff back, you have to go to court and affirmatively prove your innocence. Basically, you must prove a negative: that you did not commit a crime. It’s a complete inversion of the “innocent until proven guilty” philosophy driving most of the criminal justice system.

The modern practice of civil forfeiture is — surprise! — an offshoot of the War on Drugs that ramped into high gear in the 80s and 90s. It’s intended as a way to recoup ill-gotten gains from big-time criminals who are otherwise hard to bring to justice: maybe you can’t capture an international Pablo Escobar-type dude, but you can freeze his bank accounts and seize any of his property that happens to be moving through your jurisdiction.

In practice, however, civil forfeiture is often wielded against regular people who aren’t doing anything wrong. In many states the typical cash forfeiture amount is in the hundreds of dollars — $423 in Michigan, or $369 in Pennsylvania, according to the latest data from the Institute for Justice, a law firm that represents forfeiture victims and tracks the practice nationwide. In many cities police departments have been known to make seizures of less than $100 on the flimsiest pretenses, typically concentrated in the poorest neighborhoods. And over time, across all 50 states and the federal government, those small sums add up: between 2000 and 2019, according to IJ’s calculations, authorities seized roughly $69 billion from people, most of whom were not even charged with a crime.

Here’s one way to think of the scale: in 2019, the most recent year for which complete federal data is available, federal authorities took more cash and property from people than burglars did.

That pattern has held true for three of the last six years, although numbers in 2014 and 2015 were skewed somewhat by big, legitimate forfeiture cases involving huge sums of cash: the Bernie Madoff scandal, for instance. Once the Treasury Department’s latest forfeiture report is out we’ll know what 2020 looks like — if their numbers track with previous years then federal forfeitures will once again surpass burglary losses.

One big caveat here: the numbers in this chart only include federal figures. States and localities take assets too, as the Dallas case vividly illustrates. Unfortunately the states are all over the map in terms of what they report forfeiture-wise so it’s difficult to know what’s going on there. When the Institute for Justice ran the numbers for the 20 states that provide decent data their totals added up to about a tenth of the federal haul, so who knows what the complete picture looks like.

Returning to the Dallas case, it may very well be true that the money is connected with a crime! But that’s the kind of thing I’d like to see the police actually prove before they take it for themselves. And therein lies the problem: cops can take your stuff on the basis of a hunch and the onus is on you to get it back — a complicated, Kafka-esque nightmare that can be prohibitively expensive. The Institute for Justice estimates that a simple state forfeiture case can cost $3,000 to fight — but what’s the point in doing that if you’re, say, a driver who lost $250 during a traffic stop? The potential for abuse is astronomical.

Why hasn’t much been done about the practice yet? Pretty much everyone who learns about forfeiture finds it enraging, with two major exceptions: law enforcement groups, and the elected representatives they donate to. You’ll find some principled lawmakers on both sides of the aisle working to get rid of the practice, but there are even more — and again, this is well and truly a “both sides” issue — who quietly work to undermine reform bills in order to keep law enforcement interests happy.