In January 2016, Houston police took $955 from a man they said was a gang member with a criminal history because they suspected he was selling painkillers that were found in his car during a traffic stop. When prosecutors discovered he had a valid prescription for the drugs, they dropped the possession charge.
But the man’s money still went into the coffers of the police department and the local prosecutor.
A few months later near the U.S.-Mexico border, a Webb County sheriff’s deputy pulled over a southbound car that Border Patrol agents had flagged for having hidden compartments. There was nothing in the compartments, but because deputies suspected it was tied to drug trafficking, they still seized the 2007 Nissan Altima. The driver wasn’t charged with a crime.
The seizures highlight the controversial but complicated nature of a common policing practice called civil asset forfeiture, where law enforcement agencies can take and keep a person’s cash and property without charging the person with a crime. Instead, the government sues the property itself in civil court — where property owners have no right to a court-appointed lawyer — leading to oddly-named lawsuits like The State of Texas v. one 2005 Ford Mustang.
State and local law enforcement agencies bring in about $50 million per year through state asset forfeiture laws, but there is little data on how this powerful tool is used in Texas. Agencies and prosecutors must report their overall profits from seizures to the state, but law enforcement officials have successfully fought legislative proposals that would require them to release data on how much is taken in individual seizures, and how often they are tied to a criminal charge.
The Texas Tribune pored over thousands of pages of court records to shine a light on how asset forfeiture is used by law enforcement agencies in four Texas counties: Harris County, the state’s most populous and home to Houston; Smith County in East Texas; Reeves County in West Texas, which seized hundreds of thousands of dollars of suspected drug money hidden in cars being hauled by tractor-trailers; and Webb County on the border, where many seizures came from traffic stops on the southbound lanes of Interstate 35 heading toward Mexico.
The Tribune studied 560 forfeiture cases filed in 2016, resulting in the seizure of nearly $10 million and 100 vehicles (the investigation doesn’t include federally-prosecuted seizures, and the Tribune chose cases from 2016 in order to capture their final outcomes). The study included six months of cases from Harris County, and all 2016 seizures in the other counties.
The cash seizures were as small as $290 and as large as $1.2 million, and police took vehicles ranging from a 1982 Chevrolet truck to a 2011 Cadillac Escalade. They also seized property like Rolex watches, gold chains, and a 60-inch television.
The Tribune’s analysis also found:
■ Half of the cash seizures were for less than $3,000. In Harris and Smith counties, more than two-thirds were under $5,000.
■ About two of every five forfeiture cases started with a traffic stop.
■ Many cases were connected to possession of small amounts of drugs. In Smith County, a woman’s 2003 Chevrolet Trailblazer was seized after police found half of a gram of suspected methamphetamine and a partially-smoked blunt in the car.
■ In nearly 60 percent of the cases, people didn’t fight their seizures in court at all, resulting in judges turning over the property to local governments by default.
■ Two of every 10 cases didn’t result in a related criminal charge against the property owner or possessor; in Webb County, more than half didn’t.
■ And in about 40 percent of the cases, no one who had property taken from them was found guilty of a crime connected to the seizure.
These police seizures have been slammed by property rights advocates and critics across the political spectrum, who say civil asset forfeiture gives too much power to police and provides a strong financial incentive for them to take money and valuables. But it’s also fiercely defended by police and prosecutors, who argue the practice is a necessary tool to combat criminal organizations like drug cartels by hitting them where it hurts — in their profits.
Taking property without a criminal conviction is a violation of the owners’ civil liberties, said Arif Panju, an attorney with the libertarian Institute for Justice.
“There is a principle of being innocent until proven guilty, and forfeiture just takes that and flips it on its head,” he said. “That raises all sorts of constitutional problems.”
In February, the group won a U.S. Supreme Court case that limits forfeitures in state cases where the value of what is seized outweighs the seriousness of the connected crime.
And more and more states, like Michigan and Arkansas, have recently adopted legislation to require a criminal conviction for most forfeitures. The Democratic and Republican party platforms in Texas last year called for law enforcement to secure a criminal conviction in order to keep seized assets.
But law enforcement has stymied such proposals at the Texas Capitol for years, arguing that criminal cases can be dismissed for reasons that have nothing to do with guilt — like a defendant agreeing to plead guilty in one case if prosecutors drop another one. Prosecutors have also told lawmakers that it’s not always possible — or in the interest of justice — to file criminal charges in forfeitures.
They point to cases like those in Reeves County — where they say seized cash is clearly tied to criminal activity but the truck drivers are unknowingly transporting it.
“Civil asset forfeiture is a necessity for us on these drug corridors for us to be able to operate,” Jackson County Sheriff A.J. Louderback, speaking on behalf of the Sheriffs’ Association of Texas, said at the state’s sole legislative hearing on changing forfeiture laws this year. “It’s the single most effective tool that we have to fight the cartels in the state of Texas.”
Not as portrayed
Opponents counter that in such cases, there are other legal mechanisms for police to seize and keep the cash since the drivers are not claiming it. Seventeen states now require criminal convictions in most forfeiture cases, they argue, and Texas could do the same.
“We hear the police and prosecutors say that these are vital tools, yet states across the country are figuring out a way to both obviously combat crime and criminal activity and respect the property rights, and the civil liberties and the due process rights of citizens,” Chris Harris, a data and policy analyst with the advocacy group Just Liberty, said at the legislative hearing in April.
Critics also said that the low dollar amount of most seizures the Tribune reviewed undercuts a standard law enforcement argument: Forfeiture is mainly used to target high-level criminal organizations.
“One of the things that I think that the district attorney’s office would have people think is that all of these cases involve big drug kingpins,” said Jennifer Gaut, a lawyer who represented several people in the Tribune’s sample and now works for the Harris County Public Defender’s Office. “The majority of cases are small dollar amounts and that’s … not the message they try to convey.
But Angela Beavers, the lead civil forfeiture prosecutor for the Harris County District Attorney’s Office, said smaller seizures are common when police bust street dealers, who are an integral cog in drug trafficking organizations.
“Why would we allow the street level dealers to profit from their crimes? These are the dealers that ruin communities and families,” she said in an email.
In the face of a growing effort to change Texas forfeiture laws, police and prosecutors have pointed to the positive effects seized money can have in their communities, such as providing body armor for police and buying drugs that can reverse overdoses.
“We understand that asset forfeiture is getting a negative light, but there are very good things that come from [it],” said Smith County Assistant District Attorney Thomas Wilson, who prosecutes civil forfeiture cases. “You don’t want drug dealers profiting and continuing to use these means to sell illicit drugs.”