Guilty Until Proven Innocent

Bart and John, two professional poker players, were driving home after a poker tournament.  They had a great time and had won. As a result, they were returning home with about $100,000 in cash. That sum of money isn’t that unusual for professional poker players. You need cash to play and at the highest stakes, $100,000 wouldn’t be considered excessive.

A police officer pulled them over arbitrarily, pretending that they hadn’t signed when they changed lanes (though a dashboard camera later proved that they had).  The cop illegally stalled them, then illegally searched their car, then, when he found the cash, stole the money.

Welcome to the exciting world of civil forfeiture, where police officers can steal people’s assets to fund their operations.

How to legally steal

The idea of civil forfeiture is, if police officers suspect money is related to a crime, they can seize it without any sort of due process, and use the proceeds to fund their own departments,.  If the victim wants to get their cash back, they have to go through lengthy court proceedings at their own expense, to prove that their property was acquired legally.  If they don’t have the money to do so (because, say, their life savings were just taken by the police), or if they don’t have a way of showing that the money was not acquired illegally, they’re out of luck.

The reasoning behind this idea is simple. Fighting a war against drugs requires cash. Funding that war from seized funds is a double win–the drug lords lose the money and the dirty money is used for a good purpose.

A nice idea, but…

On the face of it, this idea is great–an easy way to fight the bad guys with their own money. But it doesn’t work well in the real world. First, it completely ignores any sort of due process or property rights. It’s not illegal to carry huge sums of cash, and there’s a reason we have property rights and courts of law–to ensure that everyone gets a chance to present the best argument in their favor and justice is done.

If you don’t think this is a big deal, then perhaps we should take the next logical step. In states with the death penalty, if a police officer thinks that someone may have committed murder, they should just be allowed to shoot them dead. Like civil forfeiture, this instant justice strategy will save a lot of time and legal costs, and the policemen are probably right most of the time anyway. (Heck, with all the police shootings recently, maybe we’re doing this already anyway.)

Bad incentives

The other problem with civil forfeiture is that it is vulnerable to the incentives. In essence, you’re paying cops to illegally search and steal money. If a cop knows that their department will get any money they find, they will be particularly incentivized to make up any reason to search vehicles and houses. In many of the cases where money and assets are seized, it won’t be worth the time or cost for the victim to prove the money is legally theirs, so that means civil forfeitures are free money to the police.

I imagine that for many police officers, it’s like a scratch and win lottery ticket. You stop a car and often finding nothing, but occasionally get a big win. Woo hoo! If they haven’t already, I imagine they’ll create rules of thumb for the maximum amount of money they can steal before people are willing to take them to court to get their money back. Perhaps they’ll even create more complicated models where they plug in the victim’s demographics, vehicle, and home address and it will spit out an estimate of the amount of money they can take.  Just another form of data mining for business….

In general, it’s a bad strategy to put incentives into place that encourage people to do bad things, since it will almost always increase the likelihood of people doing bad things.  Not all cops will, but enough will to make civil forfeiture a terrible idea.

The bottom line

Bart and John did get their money back. Three years and thousands of dollars later. After all, they were “lucky” enough to have so much money stolen from them that it was worth their time to go through the courts to get it back. But even so. Three years!

These civil forfeiture laws will likely remain. Though they really screw over some law-abiding citizens, those people are only a tiny fraction of the population. Thus, we’re in a situation where the police will want civil forfeiture a lot, since it benefits them greatly, and people, in aggregate, will only dislike it a bit. In any situation where a small minority wants something a lot, and the vast majority don’t want it, but don’t have extremely strong feelings, the former will always win.

So don’t expect any justice here.