Civil forfeiture creates a “perverse incentive” and “skews law enforcement priorities,” noted Allen St. Pierre, the executive director of the National Organization for the Reform of Marijuana Laws (NORML). “It’s one of the worst stepchildren of the war on some drugs.”
Among the TCU cases, cash and electronic devices were typically forfeited to the state. As for the cars, some students were able to retrieve them, but only after months of waiting and negotiations. One student paid $7,500 in an “economic agreement” with Tarrant County to retrieve his Cadillac Escalade. Another person sent $17,500 to the county’s narcotics unit to get back his Ford F-150.
Across the state, pursuing forfeiture cases related to cannabis has generated millions for Texas police. Between 2002 and 2012, the federal government processed $64.3 million in cash and other valuables in civil and criminal marijuana forfeitures in Texas. According to the Wall Street Journal, that amount is the fourth highest in the nation.
“Police power cannot go unpoliced”
Texas law enforcement has a long history of policing for profit. The Institute for Justice found that the average law enforcement agency in Texas took in forfeiture proceeds equal to about 14 percent of its budget in 2007. Among the 10 agencies that obtained the most forfeiture proceeds, that figure soared to one-third. Between 2001 and 2007, law enforcement agencies seized and kept over 35,000 cars, homes and electronics, forfeiting more than $280 million. District attorneys have used these forfeiture funds on ridiculous purchases, including visiting casinos, a vacation to Hawaii and a margarita machine, as seen in the video below.
Most infamously, police in Tenaha seized over $3 million from hundreds of drivers and even made “cash-for-freedom deals” with drivers. As The New Yorker reported last August, drivers “would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road.”
“The Texas criminal justice system wages war on the politically powerless and the poor are just grist for the mill,” remarked Robert Guest, a former prosecutor in Texas and now a member of Law Enforcement Against Prohibition (LEAP).
Despite enacting some modest reforms in 2011, the Lone Star State still has an appalling lack of safeguards for property owners. To forfeit property, the government needs only to show by a “preponderance of the evidence” that someone’s property is related to a crime. But in criminal convictions, the government must prove someone is guilty beyond a reasonable doubt, a much higher standard.
Unfortunately, Texas isn’t an outlier. According to the Institute for Justice’s report, “Policing for Profit,” 19 other states use the preponderance-of-the-evidence standard in civil forfeiture cases. Another 14 states require even less evidence to forfeit property.
The cost to defend oneself in court further stacks the deck against property owners. “Unlike a criminal charge, you do not have the right to court-appointed counsel when the government wants to take your property,” explained Guest. “So the state usually wins their case by default judgment.”