The police, so far as such a collective term makes any argumentative sense, have been going through a tough time in recent months. Across the country, law enforcement agencies have faced accusations of corruption, incompetence, brutality and outright murder. Underpinning many of these accusations is the documented abuse of laws and programs enacted to aid police departments. Police reaction to protests in Ferguson, Missouri following the shooting death of Michael Brown exposed myriad concerns––institutional racism, the nature of effective protest, rampant vote-driven venality and cronyism––all of which might not have been so desperately and violently expressed had Ferguson and St. Louis County Police not responded to unrest, civil or otherwise, with a show of force that was on par with military occupation.
As the story unfolded on the national level, it became clear that federal programs intended to supply cash-strapped departments with needed equipment were being taken advantage of to procure military-grade weapons and other tactical gear to departments that couldn’t, upon investigation, justify needing them. Hearings seemed to place less of the blame on federal officials for their negligence in administering these programs than on state and local police departments for displaying rank opportunism.
A similar theme is present in the case of civil forfeiture and its conflict-of-interest-generating appendage, the Equitable Sharing Program. Conceived as a method for combating adaptive criminal ingenuity, civil forfeiture is a way for law enforcement to curtail drug trafficking and work to hobble other criminal enterprises by confiscating property, like a house or a duffel bag full of unmarked bills, without having much in the way of legal justification. Admittedly, this is a gloss, and the laws that allow for various law enforcement entities to bypass the Fourth Amendment are a bit more complex than suggested here. However, the potential abuses that become incentivized once the Equitable Sharing Program is introduced require no such gloss, as the situation is aptly analogized by the caveat to not leave food unattended when there are dogs in the room.
What the Equitable Sharing Program does is allow agencies to use portions of seized property, if the seizures are justified or undisputed, however they see fit. And while the letter of the laws that inform civil forfeiture and its sibling program operate on the assumption that seized property is legally forfeited only if the rightful owner can’t prove that said property wasn’t used for criminal purposes, the burden of proof still lies with the citizen. Predictably, once it became legal for law enforcement to keep portions of the proceeds garnered from seized assets, the bureaucratic steps required for citizens to prove the “innocence” of their property and have it returned to them become increasingly byzantine and usually prohibitively expensive. In cases where property was returned, the process was egregiously lengthy and property was returned only if owners signed an agreement promising not to sue the police department.
As with militarization, civil forfeiture and this legalized misappropriation of private assets has been characterized as misbehavior of American law enforcement. This is the tack John Oliver took on his show “Last Week Tonight” when he covered the topic earlier this month: Cops with their hands stuck in the cookie jar. Though this assessment isn’t without its truths, that the narrative seems to be one balancing well-intentioned federal programs against a few bad apples among local and state police is misleading at best. And it obscures an universal rage for the creation of new revenue streams and the optimizing of existing ones. That is, police departments might be getting blamed for taking advantage of an all-too-trusting government when really all that is happening is a case of emulation. The cops are the impressionable kid brother to the federal government’s big brother.
That the U.S. government had a stake in selling surplus military hardware to state and local agencies isn’t hard to figure, but given the news this week, it is a less pressing matter than how civil forfeiture is being portrayed in public discourse. The New York Times discussed analyses rendered by the public-interest law firm Institute for Justice earlier today, which indicate that in 2012 the Internal Revenue Service actively seized assets from citizens at a rate more than five times greater than only seven years before, and that only about 20 percent of the cases involving seized assets actually ever got prosecuted.
Again, the effective incentivizing of such seizures have created a demand for applicable cases. In what can be argued is nothing better than legalized pillaging, asset seizure has become the object of a “law enforcement dragnet” rather than one more tool in the toolbox for bringing criminals to justice. The IRS, along with other federal agencies and task forces, seek out accounts ripe for seizure based on “telltale” hints alone, rather than their association with criminal activities.
One of these hints is a practice known as “structuring,” where criminals will keep bank deposits at amounts less than $10,000 so that they aren’t reported to the federal government. Using an inverted, cynical logic, the IRS will look for patterns of deposits that fall under the reporting threshold, arguing that such patterns alone are signs of illegality. Of course, these patterns are also exhibited by small businesses like bodegas and family restaurants whose cash-on-hand is only insured up to $10,000, and whose owners are wary of what would be lost in the case of a robbery or a fire. Deposit amounts strategically figured by criminals are roughly equal to those figured by small business owners out of convenience, safety and even ignorance. For example, daily deposit records of a candy and cigarette store were used to seize almost $450,000 from the business, despite no other suspicions of criminal goings-on. Put another way, a business can “structure” not in order to hide anything, but simply because that is what daily deposits add up to. This is enough for the IRS to seize a business’ bank accounts.
Since the report, the IRS has stated that it will use more discretion when deploying such measures. Whether this holds true or not, the likely reason they made such announcement is because they’d been caught raiding the cookie jar. This, of course, doesn’t absolve the police departments for their inimical behavior, but it does give a better indication as to where they learned some of their awful habits.