Policing for Profit

Did you know that law enforcement can seize your property and force you to go to court to get it back, even when they have NO evidence of a crime? Such is the ridiculousness that is Civil Asset Forfeiture in Oklahoma. Under Oklahoma law, law enforcement can seize your property (cash, guns, cars, etc.) and hold it. At some point they can file a forfeiture action in civil court alleging a violation of the Uniform Controlled Dangerous Substance Act. This is where it gets shady: Often, forfeitures will be filed even when there is NO evidence of a crime and no tie of a crime to the money or property being seized. This puts the owner of the property in the unenviable position of being forced to prove where the money came from. In other words, your money proves you are guilty until you can prove you are innocent.

This process goes against any sense of fairness or justice. For every story of a big drug bust where hundreds of thousands of dollars of drug money are found and forfeited, there is one of an innocent owner being forced to hire a lawyer to prove their innocence. And sadly, many times the amount of money we are talking about is less than what hiring a lawyer would cost, allowing the State to keep the money, even when they should not be entitled to it.

Oklahoma law also provides a mechanism in which money found in proximity to “any amount” of a forfeitable substance (drug), is automatically presumed to be drug money and you are now forced to prove where you got it. It doesn’t sound too crazy to believe that a large amount of money found near a large amount of drugs should be subject to forfeiture. The problem arises when a small amount of drugs is found (sometimes even a residue amount) and all the money the person has on them is forfeitable, even though there is absolutely no reason to know or believe the money came from drug sales.

Let me give you an example: I had a client a couple of years ago who was pulled over on her way out of town for a traffic violation. As these things go, the officer found “probable cause” and searched the vehicle. Inside the vehicle they found a small amount of methamphetamine and over $9,000 in cash. The owner of the cash tired to explain that she was on her way to Tulsa to go look at vehicles to purchase and that the money was from the sale of her house. She even had the phone number and copies of the vehicle ad she was going to look at. The money was seized, and a forfeiture was filed. She was forced to spend thousands of dollars in proving to the satisfaction of the ADA that the money was from the sale of a house and that she was on her way to purchase a vehicle. It wasn’t until the State failed to respond to discovery and a hearing was set that they agreed to return the funds. If we had been forced to have the hearing, attorney fees would have cost her half of her money, even if we won. And there would be no way for her to recover those attorney fees.

Another huge problem with forfeitures in Oklahoma is what happens to the money after being forfeited. The answer is who knows?  Oklahoma Watch wrote articles here and here regarding misspent forfeiture funds. While these articles appeared in local papers, there was no follow up on the details of the problems. Seized guns and money could not be accounted for. Money was used to pay for an ADA’s student loans. An ADA lived in a forfeited house for years, and repair and utility bills were paid out of the ADA’s supervision fee accounts. These are all arguably violation of state law, but even after these articles, nothing has been done.

Lastly, giving police and district attorneys a direct stake and incentive in taking people’s property and forfeiting it is a recipe for corruption. Anytime you directly incentivize a certain behavior, it is not surprising that there are abuses. There is absolutely no reason they should get to “eat what they kill” and keep the forfeited money. Send that money to the general fund and if the legislature decides to increase budgets to those agencies, then great. Clearly law enforcement is against this because they aren’t into forfeitures to “protect the public,” they are in it to provide more funds to themselves. How else to explain the many comments from law enforcement that forfeitures would plummet if they didn’t get a portion of the proceeds.    

So what do we do? Well for starters, Sen. Kyle Loveless from Oklahoma City has introduced a bill to reform our civil asset forfeiture laws. There has been some support, but with the composition of the State Legislature, his bill will likely be gutted or transformed into something that still gives little protection to people subject to forfeiture. The things that would make the most sense (attorney fees for people that successfully fight a forfeiture, requiring a trafficking amount (or at least a large amount) of drugs to forfeit, requiring a criminal charge within 30 days of seizing funds, but still allowing for the civil hearing in the meantime, putting forfeited money in the general fund) have no chance of passing. But it still would help to contact your legislator and have a frank discussion about the problems you see.

The “war on drugs” has utterly failed. It is time we start being smart on drugs instead of tough on drugs.