D.C. police plan for future seizure proceeds years in advance in city budget documents

Washington Post – by Robert O’Harrow Jr. and Steven Rich

D.C. police have made plans for millions of dollars in anticipated proceeds from future civil seizures of cash and property, even though federal guidelines say “agencies may not commit” to such spending in advance, documents show.

The city’s proposed budget and financial plan for fiscal 2015 includes about $2.7 million for the District police department’s “special purpose fund” through 2018. The fund covers payments for informants and rewards.  

The financial details emerged Wednesday, when the D.C. Council’s judiciary committee unanimously voted to forward a bill that would overhaul asset forfeiture laws in the nation’s capital. The bill would raise the threshold of proof required for a forfeiture, bolster the rights of individuals whose property has been taken and require that proceeds from seizures under federal law go into the city general fund, rather than directly to the police department. The full council is set to vote on the bill Tuesday.

Council member Tommy Wells, chairman of the Committee on the Judiciary and Public Safety, said police should not have a financial incentive to make seizures. He said the bill addresses problems that are common across the country.

“All across the nation, law enforcement agencies are directly benefiting from forfeiture,” said Wells (D-Ward 6), who is leading the effort to reform asset forfeiture in the District. “In those places, forfeiture proceeds go directly to the law enforcement entity, creating at best the appearance of a conflict of interest, and at worst, an unchecked incentive for slush funds.”

Civil forfeiture laws permit local and state police to take cash, cars, homes and other property from people suspected of involvement in drug trafficking or other wrongdoing without proving a crime has occurred. Police can make seizures under state or federal laws.

Since 2009, D.C. officers have made more than 12,000 seizures under city and federal laws, according to records and data obtained from the city byThe Washington Post through the District’s open records law. Half of the more than $5.5 million in cash seizures were for $141 or less, with more than a thousand for less than $20. D.C. police have seized more than 1,000 cars, some for minor offenses allegedly committed by the children or friends of the vehicle owners, documents show.

When D.C. police seize cash or property under District law, the proceeds go into the city’s general fund. But proceeds of seizures made under federal law go directly to the police department through the Justice Department’sEquitable Sharing Program, which allows local departments to join with federal agencies in forfeitures and keep up to 80 percent of the proceeds.

District financial records show that D.C. police receive about $670,000 annually from the Equitable Sharing Program. About $30,000 in proceeds from forfeitures under District law go into the general fund.

Justice Department spokesman Peter Carr declined to discuss civil asset forfeiture practices in the District. He said police agencies can participate in the program only if they comply with its guidelines. Among other things, the guidelines say that agencies “should not ‘spend it before you get it’ or budget anticipated receipts. Receiving agencies may not commit to the spending of sharing monies for a certain purpose in advance.”

In a statement, D.C. Police Chief Cathy L. Lanier said the department is not building its budget with the proceeds of civil seizures but is using them “to augment the reward pool of funding and confidential fund programs (witness protection, rewards for information in homicides).”

Lanier said the department’s focus is not on generating revenue but on “removing the profit gained from facilitating a crime. By forfeiting those assets, the expansion of criminal activities can also be reduced.”

The council’s reform effort began last year after the Public Defender Service for the District filed a class action lawsuit against the city, alleging that police violated the constitutional rights of residents in the process of seizing their cars. Among other things, the Public Defender Service  focused on a city requirement that vehicle owners post bonds of up to $2,500 before they were permitted to challenge seizures.

In August 2013, all parties agreed to put the lawsuit on hold as the District worked to modify its forfeiture laws.

Wells said the proposed bill would create a fairer system under District law by scaling back the bond requirement, creating a clearer appeals process and imposing a requirement for notifying property owners within 10 business days of a seizure.

But the bill has been opposed by law enforcement officials, partly for the same reason other reform efforts across the country have been stymied: money. The officials also said it would create an administrative burden. In addition to tightening oversight and the rules for civil seizures, the District proposal would cut back on revenue.

“Enacting this Bill would almost certainly decrease the number of successful forfeiture ­cases, which would lead to a loss of significant forfeiture revenues,” D.C. Attorney General Irvin B. Nathan warned in a statement to the council last year.

Nathan, who has resigned effective Monday, did not respond to a request for an interview. But a knowledgeable official who spoke on the condition of anonymity because the negotiations are ongoing said that Nathan was addressing an earlier version of the bill. The official said the attorney general’s office thinks that the current version is an improvement but declined to provide details.

The bill would require that the federal proceeds from seized property go into the city’s general fund rather than to the department. Because the Equitable Sharing Program requires that seizure proceeds go to the department, D.C. police would effectively be blocked from participating in the program and using the federal law. That would force city police to make all seizures under District law, which already requires that seizure proceeds go into the general fund.

Wells said the general fund provision in the bill cannot take effect until fiscal 2019, because the city has already budgeted the anticipated proceeds to that point.

“That is personally offensive to me,” said Wells, whose council term ends in January. “I want to make it fair. There is a financial incentive not to do that.”

In a fiscal impact statement Wednesday, the city’s chief financial officer, Jeffrey S. DeWitt, said that the bill “could reduce federal resources­ received by the District by approximately $670,000” each year if the general fund provision takes effect.

Wells and the Public Defender Service contend that the department’s aggressive use of seizure laws — originally intended to fight drug kingpins and deprive them of ill-gotten riches­ — has had a disproportionate impact on the poor and working class.

One case cited by the Public Defender Service involves Sharlene Powell, who had worked for three decades as a Postal Service employee. She loaned her car to her son, who was stopped and arrested on a misdemeanor drug offense. Prosecutors dropped the charges, but District police kept the car. To get her car back, Powell had to pay a $1,772 “penal sum” bond to challenge the seizure, the Public Defender Service said in a statement last year to the judiciary committee.

In response to questions about seizures, the police department directed The Post to a general order signed by Lanier called “Handling and Accounting for Seized and Forfeited Property.” The document, which spelled out procedures police should follow, was released two days before a council hearing in July 2013 about civil asset forfeiture.

“We know this has been getting a lot of attention nationally, and we agree that there have been troubling practices around the country,” Lanier said in her statement. “These programs must have strong oversight and supervision.”

Darpana Sheth, an attorney with the Institute for Justice, a nonprofit public interest law firm that advocates for seizure reform, said the District bill could have a wide impact.

“Short of eliminating civil forfeiture entirely, this bill is a good model to strengthen protections for property owners and remove the profit incentives that have been fueling the District’s aggressive seizing of people’s property,” she said.

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