“Civil asset forfeiture is an essential and integral tool in the criminal justice system,” said Harris County Assistant District Attorney Angela Beavers. But, said State Rep. Terry Canales, "there is a lot of bad" that comes from it. “I see a lot of abuse throughout the state,” Canales continued. “It can be a tool—and has its place in American jurisprudence—but we need reporting requirements, we need oversight, we need to see what [law enforcement] is doing.”
Beavers and Canales spoke on a panel on June 20 hosted by The Texas Tribune and the Pulitzer Center focusing on how law enforcement agencies, cities, and counties use civil asset forfeiture and why many states are restricting the practice. Jolie McCullough, who moderated the conversation, was the lead writer for a Tribune and Pulitzer Center-supported investigation on asset forfeiture in Texas. Jacob Ryan, another panelist and a journalist with the Kentucky Center for Investigative Reporting, also contributed stories to “Taken,” the Pulitzer Center and the Tribune’s collaborative reporting effort.
Canales referred to the “lowest standard” of proof that is required of the state in taking one’s property. “There doesn’t have to be an underlying criminal offense, no conviction,” he said.
Beavers said the idea that the state is “policing for profit” is a “false narrative” and law enforcement should work at reversing this narrative.
Canales outlined a few cases he has seen where there has been oversight on the part of the state, or where individuals’ property was wrongfully seized. He described the situation of a son, mother, and father whose motorcycle and pickup truck was wrongfully taken from them. There is “a hunger for money” on the part of the state, he said. “There are good actors, but the law is ripe for abuse...we’re in desperate need of reform.”
There is always another side of the story and a reason why law enforcement would seize contraband, Beavers said. “Law enforcement is only interested in seizing property from criminals, from drug dealers,” she said.
In Kentucky, journalist Jacob Ryan said, law enforcement agencies are required to report what they seize each year to the justice cabinet. “In our reporting with the Pulitzer Center, we found that few agencies do that...in those five years [of reporting], only 11 percent reported as they were required to every year."
Recently, legislation has been proposed in Texas to increase reporting requirements, McCullough said, but “there has been steady resistance from law enforcement.”
“I’m all for transparency,” Beavers said, noting that law enforcement has to report statistics to the Attorney General’s office and is audited each year. “The resistance [on part of law enforcement officials] is that we’re trying to do our job, trying to fight crime.”
Canales returned to the low standard of proof required of law enforcement agencies: “The burden to prove isn’t much of a burden at all.” In response to Beavers’ claim that law enforcement agencies are for the most part seizing contraband to stop drug dealers, Canales said that in some cases, law enforcement agencies are taking innocent individuals’ homes. In addition, he said, it is possible that even if the state illegally seized one's property, “it doesn’t matter, they still get to keep it. The state never loses; their incentive is to seize your property."
Ryan noted that one road to civil asset forfeiture reform is reassessing the distribution of funds between the police and prosecutors. For example, he said, money could be sent not to law enforcement, but to a school district.
Discussing concrete steps towards change, Canales noted that one suggestion has been to alter the standard of proof to clear and convincing. The far end of reform, McCullough said, would be to require a criminal conviction.
“What the judicial system is about is being made whole. It doesn’t seem judicious, it doesn’t seem American, to take someone’s property and then [the individual] loses money when [the state] did it unlawfully.” Beavers disagreed with Canales’ proposals, stating that preponderance of the evidence is the standard that “any money case in civil law goes through.” Clear and convincing, she said, is a different standard. “We’re talking about contraband, not someone’s liberty.”
“It isn’t just drug money, it’s houses, it’s cars...to take someone’s home,” Canales responded. “For honest hardworking Americans, the process is unfair.”
“We use the two lowest standards of proof to take your property,” he said.
McCullough also highlighted a finding from her reporting for The Tribune. In around 40 percent of civil asset forfeiture cases, no one who had property taken from them was found guilty of a crime connected to the seizure.
In the Q&A portion of the event, an attendee asked about common ground that Beavers and Canales might find going forward in reforming the system.
“I dream we have reporting requirements that show the transparency that Texans deserve,” Canales said. Criminal convictions, he continued, may not always be necessary, “but in most cases it should be the standard.”
Ryan said he hopes that citizens “have more information, and more law enforcement officials are willing to discuss this. I hope the future has clear lines about what’s taken, and what’s not taken,” he said.
Beavers and Canales agreed that reporting requirements for law enforcement agencies could be bolstered.
Another attendee of the event, Arif Panju, Managing Attorney of the Institute for Justice's Texas office, returned to Beaver’s earlier criticism of the anecdotal nature of Canales’ examples. Canales and Beavers had discussed the Timbs v. Indiana case, where the Court dealt with the applicability of the excessive fines clause of the Constitution’s Eighth Amendment to state and local governments and the case of Zaher El-Ali and the seizure of his Chevy Silverado in July 2012.
“Tyson Timbs and several members of the Texas Supreme Court didn’t think that Timbs or El-Ali were mere narratives...that’s why we fight for forfeiture reform,” Panju said.