Two years ago the Texas Legislature slipped into the state budget an item mandating a thorough review of certain civil forfeiture proceedings. Civil forfeiture -- the process state and federal prosecutors use to seize property from suspected criminals, whether they've been convicted or not -- is a source of perpetual controversy. Partly, this is because the practice sidesteps defendants' constitutional due process rights (e.g. the right to an attorney, the presumption of innocence, etc.) by filing suit against the property itself, which explains the existence of cases such as United State of America vs. One Tyrannosaurus Bataar Skeleton and State of Texas vs. Twelve Gold Coins. Partly, it's because the resulting stash of forfeited cars and cash often prove irresistible to certain prosecutors who may, for example, need to buy the silence of the driver he or she crashed into or a margarita machine.
The legislative mandate, however, said nothing about examining the philosophical underpinnings of civil forfeiture or the potential for abuse. As a result, neither did the final report, quietly released last month by the state's Office of Court Administration, beyond a brief acknowledgement that because of lax reporting requirements, "There remains considerable potential for abuse." Instead, researchers spend much of the study examining a more pragmatic question: Whether civil-asset forfeiture, specifically when it's initiated by the Texas Department of Public Safety, is worth it for local district attorneys.
The answer is a resounding yes. The return on investment is little short of phenomenal:
The data shows prosecutors' revenue more than offsets the costs of processing civil asset forfeitures. The direct costs of prosecution ($702) are just 4.6% of the DA's portion of an average DPS initiated forfeiture case ($15,182).
And that's when people are actually prosecuted. In a large percentage of the forfeiture cases the study examines no criminal charges were ever brought. It's hard to say exactly how many because the data the researchers rely on is limited; it's probably more than half. (Researchers examined 200-plus DPS-initiated forfeiture cases in 20 counties. Of those, 94 could be linked to prosecutors' records in a DPS database; it was impossible for them to tell whether the others were missing because they had been expunged, there had been a clerical error, or if cases simply hadn't been filed. Of those 94, 60 were formally charged with a crime.)
The study's authors speculate that some prosecutors pursue just civil forfeiture when the criminal cases would be hard to win:
For example, cases where the only seized asset is cash are potentially problematic. In the absence of drugs or other obvious criminal implements, the most likely charge, money laundering, is extremely difficult to prove. This explains why in the study sample just 43% of cash seizures lead to criminal prosecution compared to 81% of cases where drugs were present.
Given that a conviction may be hard to obtain, some DAs simply don't believe these cases are worth the effort. One gave the following rationale: "Prosecuting the mule is a total waste of time. The people who hired the mule don't care about the mule, all they care about is the product and the money... We don't spend time on the mule because it has no impact on the problem."
The report includes some other interesting tidbits. In Medina and Hill counties, civil forfeiture revenue in 2012 was more than the allocated budget of the district attorneys' offices. In Reeves County, it was 15 times as much. While counties are explicitly banned from using forfeiture proceeds as a replacement for local funds, "Several of the interviewed DAs...believe their budgets are reduced or kept low with the expectation that the office's operations will be sustained going forward by forfeiture proceeds
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It also includes a reminder of the scope of civil forfeiture in Texas. Between 2003 and 2012, the state's law enforcement agencies seized $486 million.
Send your story tips to the author, Eric Nicholson.