From “Accumulating Insecurity”: Forfeiture law in the United States

by Tim Shenk, Justicia Global

I’ve been reading a new book, Accumulating Insecurity: Violence and dispossession in the making of everyday life. It’s making my head hurt a little. The ideas I want to share here are from an article by Charles Geisler, a professor in Development Sociology at Cornell University.

Geisler has put together some pretty scary data about property and some under-publicized things known as “forfeiture laws” in the United States. When the Department of Homeland Security or local law enforcement makes an arrest, they can confiscate any property belonging to the detainee, whether or not they ever end up charging the person of any crime. This is becoming more and more common: in one year in Michigan, over 9,000 forfeiture cases were reported.[i] In fact, forfeiture seems to be one way many cash-strapped police departments are making a good deal of money these days.

This was unbelievable to me, in a country that has such strict moral guidelines around the sovereignty of private property. I’m not a strong believer in private property, an idea that makes people do things like lock up food they’re throwing away while others go hungry. But this “forfeiture” business is crazy making — and somehow it’s perfectly legal.

Below are some excerpts from Geisler’s article. Highlights are my additions.

The Department of Homeland Security, a cabinet-level department with twenty-two member agencies, has 200,000 employees and is the largest civilian agency in U.S. history. Its budget is the envy of all and its contracts to the private sector seem inexhaustible. Yet the war on terror, with which it is closely associated, has produced few captives, put fewer still on trial, and convicted only a trickle of hapless victims. In the immediate aftermath of the Postville [Iowa] raid, one of the appointed immigrant interpreters wrote in the New York Times that ICE’s poor showing in terrorist arrests since September 11, 2001, was forcing a redirection of their security resources to easier prey – undocumented workers committing victimless crimes promoted to felonies.[ii] The 2009 ICE reporting shows striking increases in the arrest of aliens on criminal charges, almost certainly a momentum riding on the coattails of alien reclassification and crime redefinition.

The dispossessing consequences of this reclassification have potent welfare effects of now-felonized immigrants. As a new brand of property seizure it has little precedent. There is no equal protection clause to stop it and, despite the downturn in work site raids by the Obama administration, there is insufficient political will to curb it at home, at work, on highways, or anywhere that racial stereotyping plays out. I am referring to seizure qua forfeiture, which under federal law and many state laws permits police to confiscate the property of criminals and suspected criminals whether or not they are convicted of a crime. Now this extends to illegal aliens whose minimal actions have been super-sized to felonies. Unlike eminent domain and commandeering prerogatives of government, both with roots in medieval England, forfeiture is relatively new and mushroomed recently as a government response to the drug wars of the 1980s. That war is an important layer of the war on terror, both globally and, to the bane of all Latino immigrants, in Colombia, Mexico, and other enclaves of Latin America and the Caribbean.[iii]

Briefly, forfeiture is a widely used means of confiscating property with impunity…. Under forfeiture law, officials may seize homes, cars, bank accounts, personal property, or other assets without evidence of criminality. Forfeiture requires no trial, can occur before guilt is established (probable cause at the discretion of police and prosecutors is sufficient), contains incentives for malpractice (proceeds go to the seizing agency), becomes a cost-recovery device (public sector accumulation), and has come to be used with little accountability. By 2000, its impetus, seizing drugs, was radically extended by Congress to 140 offenses and surely more since.[iv] Because law enforcement officials enjoy all proceeds, the temptation to abuse forfeiture is uncontrollable — privatized, “profit-driven” law enforcement taken to new heights.[v] Kochan claims that 80 percent of the people whose property is seized under drug laws are never formally charged.[vi]

[i] Kochan, Donald. 1998. Reforming property forfeiture laws to protect citizens’ rights. Mackinac, Mich: The Mackinac Center for Public Policy.

[ii] Camayd-Freixas, Erik. 2008. The true story of Postville. New York Times. July 11.

[iii] Schreiber, Bradley C. 2009. Defeating the drug cartels: A broader approach. Homeland Security Today 6 (8): 7. Schroeder, Jana. 2009. The war for Mexico’s future. Homeland Security Today 6 (3): 27-33.

[iv] Roberts, Paul C., and Lawrence M. Stratton. 2000. The tyranny of good intentions: How prosecutors and bureaucrats are trampling the Constitution in the name of justice. Rosewood, Calif.: Forum.

[v] Hyde, Henry. 1995. Forfeiting our property rights. Washington, D.C.: Cato Institute.

[vi] Kochan 1998.

Geisler, Charles. 2011. “Accumulating Insecurity Among Illegal Immigrants.” In Feldman, Shelley, Geisler, Charles and Monen, Gayatri A., eds. Accumulating Insecurity. Athens, GA: University of Georgia Press. Excerpts from p.250-252.

Una respuesta a “From “Accumulating Insecurity”: Forfeiture law in the United States

  1. Wow that is incredible. So if you’re never charged, you don’t get your stuff back?

    “Kochan claims that 80 percent of the people whose property is seized under drug laws are never formally charged.”
    ^ This certainly makes it sound like that’s indeed the case.

    I could understand if the police were allowed to take stuff during an arrest, which they keep if you’re found guilty. But keeping stuff without charging you seems not just injust, but even legally inconsistent. I’m as surprised as you are.


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