Even the staunchest advocate for preserving South Carolina’s civil asset forfeiture powers admits that cops have an incentive to seize people’s property for their own department’s benefit.
Jarrod Bruder, the executive director of the South Carolina Sheriff’s Association who frequently lobbies for law enforcement interests at the Statehouse, said that without the incentive of profit from civil forfeiture, officers probably wouldn’t pursue drug dealers and their cash as hard as they do now.
If police don’t get to keep the money from forfeiture, “what is the incentive to go out and make a special effort?” Bruder said. “What is the incentive for interdiction?”
Bruder’s comments came after being presented the research from our TAKEN investigation, which found that law enforcement agencies seized more than $17 million using state laws that allow police to seize money and property without requiring a criminal conviction or even an arrest. Most of the money and property that officers seize ends up enriching the police departments’ bank accounts.
The investigation found that in a fifth of forfeiture cases in South Carolina, no one is convicted of a crime. In 19 percent of cases, there is no criminal arrest. Law enforcement seizes property from black people 71 percent of the time, with the overwhelming majority of cases involving younger black men.
Advocates for reform say no one wants to take away law enforcement’s ability to pursue drug dealers and their profits but that forfeiture should be tied to a criminal case with proof the cash or property was profits from criminal enterprise, not just the cash someone was carrying when stopped or arrested.
Advocates also say profits from forfeiture should be sent to the state’s general fund or a fund unrelated to law enforcement to remove the incentive to seize money that would be funneled back into a department’s budget.
The Greenville News contacted every law enforcement agency that filed a civil asset forfeiture in the state and asked how they handled forfeiture, what they used the money for and what would happen if South Carolina reformed its law.
Some who responded said they believed the system to be fair because, in their eyes, it involves due process.
Former Mauldin Police Sgt. Ben Ford, who oversaw forfeiture for the city police before he recently became Travelers Rest police chief, said it’s fair because people can fight to get their property returned in court.
Greenville Police Chief Ken Miller said it’s fair because people can choose to go before a judge. “That person may be able to justify that, but they’ll do that with an attorney,” he said.
But that due process isn’t in a criminal case with the requirement of proof. Instead, the burden is on the property owner to prove money wasn’t earned from illegal enterprise. Any costs to hire an attorney to fight the case are also borne by the individual.
Since most cases involve just a few hundred or a few thousand dollars, it’s often not worth the cost or time to argue the case with law enforcement, and many people just give up, even if they believe their money was taken unjustly, the TAKEN investigation found.
Law enforcement officials said lessening local forfeiture profits would dramatically affect their crime-fighting. That’s despite the supposed limited scope of use of drug proceeds written in state law.
Clemson Police Chief Jimmy Dixon said if police didn’t get to collect forfeiture money, it would hamper the department’s ability to conduct long-term drug surveillance.
“It could potentially shut down our K-9 unit,” he said. “Overall, our ability to conduct undercover narcotics operations could be stifled.”
Lt. Jake Mahoney with the Aiken Police Department said they’d have to divert money from the budget to cover drug enforcement.
Greenwood Police Chief Gerald Brooks said it would “sharply curtail our drug enforcement activities.”
Forfeiture proceeds are not meant to be written into a budget or counted on for recurring expenses, but should be treated as a supplement to provide for extra training or equipment, according to the law and legal opinions.
In other words, police departments shouldn’t count on forfeiture revenue to cover needs that should be budgeted, said Derek Cohen, executive director of Right on Crime, a conservative criminal justice reform organization.
No one is saying police funding should be cut, Cohen said. Police must have the equipment and funding to pursue dangerous criminals, but their ability to fund their operations should be based on taxpayer decisions in budgets, not on a force’s aggressiveness in seizing citizens’ property for their own gain, he said.
Asset forfeiture reform has backing from the political right and left. It’s a platform issue for conservative and limited government groups like ALEC and The Heritage Foundation as well as civil liberties groups such as the American Civil Liberties Union. The hinge that swings the door for both sides of the issue is property rights and due process.
Robert Johnson, an attorney with Institute for Justice, a property rights advocacy law firm, said police should still be able to seize property, but they should have to convict someone of a crime to do so.
“Similarly, no one is saying don’t fund law enforcement,” he said. “What we’re saying is law enforcement should be funded without regard to the amount of money that they seize.”