Brian D. Kelly on the False Promise of Policing-for-Profit
2019-12-11 · Guest: Brian D. Kelly (Associate Professor of Economics at Seattle University) · 51:42
Economic incentives and fiscal stress in civil asset forfeiture
Bob Zadek interviews Brian D. Kelly, Associate Professor of Economics at Seattle University, about his research into the economic incentives behind civil asset forfeiture. Kelly’s data-driven study, conducted in partnership with the Institute for Justice, reveals that forfeiture does not improve police efficiency or reduce drug use, but is instead strongly correlated with local government fiscal stress.
Topics: civil asset forfeiture, equitable sharing, policing for profit, public choice theory, drug war, law enforcement incentives, Institute for Justice, clearance rates
Speakers: Bob Zadek, Brian D. Kelly
Bill of Rights Day and Introduction [00:18]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Thank you so much for listening this wonderful, almost winter Sunday morning. Today, December 15th, is a very special day that I would be remiss in not recognizing. On December 15th of 1791, the Bill of Rights, the first 10 amendments to the Constitution, were ratified and became part of our Constitution. They became ratified when Virginia, the last state to ratify, ratified them in a vote and they became the law.
The Bill of Rights has a fascinating history. Many of the states when asked to ratify the draft of the Constitution were reluctant to do so without there being a Bill of Rights. James Madison, often recognized as being the “father of the Constitution”—his original draft is the one that was the starting point—James Madison always felt that the Bill of Rights was unnecessary because you didn’t need to protect the people’s rights from government because nothing in the Constitution empowered the government to take away the rights. Most states didn’t buy that, and there was an implicit understanding that the states would ratify on the condition that the Bill of Rights would thereafter be adopted.
James Madison was a little worried that the Constitution, although ratified, was still fragile. There was a lot of unhappiness; the anti-federalist movement was still powerful in this country, and he was concerned about the Constitution being too fragile. So in order to take the wind out of the sail of the anti-federalists, even though he felt the Bill of Rights was not necessary, he proposed it as Speaker of the House—that was his post in the first Congress. He proposed the Bill of Rights, it was passed by Congress, sent out to the states for ratification, and we have the Bill of Rights today.
That is particularly special because today’s show we will be discussing many of the rights protected specifically by the Bill of Rights. So what a great segue into this morning’s show. This morning I would love to welcome to our show Brian Kelly. Brian is an associate professor of economics at Seattle University, and he specializes in very interesting subject matter: applied microeconomics and, specifically and more to the point of this morning’s show, the economic analysis of law, market power, and antitrust. In other words, Brian has studied from an economic standpoint in a fascinating way principles of law that we have spoken about so often on my show this morning.
Most specifically, we will be visiting an issue we have discussed before on our show—probably the earliest show on this subject was way back in 2013—the subject of civil asset forfeiture. The subtitle, according to a wonderful organization, the Institute for Justice, many describe civil asset forfeiture as “policing for profit.” Is civil asset forfeiture an income-producing device like writing a lot of parking tickets and raising fines if you don’t mow your lawn in your house? Is it a valid and appropriate device to combat crime, or is it just, as the IJ has said, policing for profit? You don’t have to wonder about that. Our guest this morning, Brian Kelly, has the answer. Brian, welcome to the show this morning.
Brian D. Kelly: Well, thank you, Bob, for having me on the show.
Defining Civil Asset Forfeiture and Equitable Sharing [02:41]
Bob Zadek: Now Brian, you’re an economist, not an attorney. I presume you didn’t go to law school; you’re an economics professor. Tell us about the project you undertook. What was the goal of your project? On whose behalf did you undertake the study? And how long did it take, so the audience can get a sense of how reliable the data-driven conclusions are that you have reached?
Brian D. Kelly: Sure, Bob. I’ve been working on forfeiture in one extent or in one aspect or another since 2010, so I think I’m in my 10th year now. During that time, I’ve talked to people at the Institute for Justice because they’ve also been working on it for, oh, I think even longer than that. And about two years ago, IJ contacted me and said, “Hey, we want to take a careful look at equitable sharing,” which I’m sure you’ll discuss in a few minutes, is this program that the feds have with state and local police. “And would you be interested in participating?” I said, “Sure.” And so it was a big data-intensive project. I did a lot of number crunching. Institute for Justice was terrific in their support of the project, both financial and research assistance and getting me the data sets. So I would say first to last is about a 12-month effort.
Bob Zadek: Now, for our audience, although I suspect most if not all of our listeners understand the principle or know what the words “civil asset forfeiture” mean, with Brian’s help, I’d like to just explain it to our audience just so we have a frame of reference.
Civil asset forfeiture is a process by which law enforcement will confiscate, will forfeit to itself, will confiscate private property belonging to citizens—and here comes the important concept—who have not been convicted and perhaps not even accused in the formal sense of committing a crime. They will confiscate property that either they suspect was used or may have been used or they have probable cause to believe was used in the commission of a crime or is the fruits of that crime. So there’s no trial, there’s no jury of one’s peers, there’s no conviction; there’s just a suspicion. And under the principle of civil asset forfeiture, law enforcement will take one’s property and keep it. They own it. And it is incumbent upon the innocent at that point in time owner of the property to initiate a lawsuit or other action to get back their own property. It’s pretty offensive.
And there has been a suggestion—but you will learn in this show it’s far more than a suggestion, as Brian will explain—that there is a somewhat cynical, sinister motive of law enforcement that they take advantage of civil asset forfeiture because police, as we will learn, get to keep—not individually, but the departments get to keep—all or some of what they confiscate for their own use. More about that later. Pretty offensive stuff.
And Brian, just so we understand the principle, so the audience can understand, you mentioned equitable sharing. Equitable sharing is again a sinister federal program. Equitable sharing—the government has these punitive drug laws. And we have no official federal police force. So just like with Prohibition, the government, the federal government, was unable to enforce Prohibition in the ’30s and the drug laws today because they haven’t got any cops. So how do they get local law enforcement to enforce federal law? They do so by saying, “Use forfeiture to take people’s property if you think they’ve used it in the commission of a drug crime. We will allow you, local law enforcement, to keep what you confiscate.” So the federal government in effect empowers the states to steal—in my words, but forfeit in government’s words—individuals’ property. And what the feds get out of it: they get some money, but they get local law enforcement carrying out federal law enforcement issues. Brian, is that a fair summary of forfeiture in general and equitable sharing specifically?
Brian D. Kelly: You’re right that the point of equitable sharing is to get state and local cooperation with the feds. No question at all about that. Now, the state and local folks don’t get to keep all the money; some of it goes to the feds. But otherwise, yeah, pretty good there, Bob.
Bob Zadek: Okay, so of course the feds get their vig and the states get their vig. Everybody’s happy except the individual whose property was taken away on a suspicion of—it could be any crime, but it’s almost always a drug-related crime. And what’s also interesting as an aside is the suspicion often comes about during traffic stops where drug-sniffing dogs, who have learned if they find drugs they get a treat—hmm, a little incentive for the dogs—“alert,” which is a police word for “make an indication, tell an indication that there is drugs or have been drugs in the car.”
The Data and Methodology [04:32]
Bob Zadek: Did you at all have to study—we’ll get into the body of your study in a moment—have to study the effectiveness of these drug-sniffing dogs, or was that not part of the portfolio you were asked to look at?
Brian D. Kelly: I would love to look at that. And in fact, on the federal databases that I relied upon, there are fields in there to indicate whether a drug-sniffing dog was used in the original arrest or seizure. The problem is they don’t release that data. So the data sets that we get from the feds have lots of pieces of them are crossed out. We just can’t have access. And unfortunately, one of the things we don’t have access to is whether drug-sniffing dogs are used.
Bob Zadek: And what’s interesting is drug-sniffing dogs are trained to alert when they detect marijuana. Now, there has never been any definitive study that proves that there is a very high likelihood that drug-sniffing dogs will only alert when there are drugs, or what percentage of the time will these drug-sniffing dogs be right. Suffice to say that they are dogs, and part of their training is when they alert, they get a treat. Hmm, I wonder if you were a dog, what is the likelihood in a gray area you might just say, “I’m kind of hungry, so I’ll alert.” I don’t trust the dogs all that much, having been a dog owner. I know dogs have a propensity to opt for the treat and compromise accuracy. But that’s an aside for another show; people from PETA are not going to start calling me and complaining. We will not take the calls, so don’t bother trying.
So now Brian, let’s get into the data itself. What was the—what were the core principles you were trying to prove or disprove, and how did you go about figuring out what data was indicative of either proving or disproving the concepts you were examining?
Brian D. Kelly: So the basic proposition is to look at what forfeiture proponents argue, which is that forfeiture is about fighting crime and fighting illicit drug use. So in a nutshell, that is what forfeiture proponents will say. Opponents will say forfeiture, even quite apart from its civil liberties problems, is about raising revenue for local, state, even federal police agencies. So that was my objective: to look at those two head-to-head competing views of forfeiture and see if I could make any sense out of them.
The data came from the feds. And while the feds do black out a lot of the data, I do want to say, and a bit of a hats off to them, they have some openness in it. Through Freedom of Information Act requests, you can get a lot of data on the assets being seized. And so I got a data set that has several million—well, it’s an enormously complicated set of data sets. But among other things, it has the records on every asset that has been shared between the feds and the state and local governments or police agencies. And this is the equitable sharing we’re talking about. But one thing I want to stress, Bob, and it’s a big problem for forfeiture researchers: we have a lot of information on the assets; we don’t know much about the owners of those assets. In fact, we know almost nothing. The federal government system tracks the property; it doesn’t tell us anything about the owners. And so that’s a real drawback.
Bob Zadek: Which means you don’t know much about their relationship to the law, their criminal background, and the like. They are just placeholders, but the real data is on the asset seized itself.
Forfeiture and Policing Efficiency [08:31]
Bob Zadek: But how do you go about determining whether there is any relationship between aggressive forfeiture and reduction in crime? It seems to me as a non-economist, how do you even look for what the markers are, what the indicators are? How do you go about it?
Brian D. Kelly: So what I did, and I’ll just spend a few moments on this because it gets boring pretty fast, but I created an enormous panel of data. Now, “panel” in statistics terms means you follow a particular observation—here it’s a police agency—over time. And so I created this panel of several thousand police agencies over 10, 15 years. And I looked at their crime reported to those agencies and their arrest rate on those crimes. That’s available through the Uniform Crime Reports. And I looked at their forfeiture receipts: how many and what was the value of the assets they received.
And so putting those together, I was able to ask: Does forfeiture predict more efficient policing? Now, you ask what’s more efficient policing? I use something that criminologists use a lot, which is the “clearance rate” for violent and property crimes. So police have, let’s say, a certain number of murders, rapes, and so on reported to them. How many of those get cleared by arrest or by other means? That is, how effective are the police in responding to the crime? And so I use clearance rates as what we’d call a dependent variable, and I ask: Does forfeiture predict clearance rates? More forfeiture, a better clearance rate; less forfeiture, lower clearance rate.
And following agencies through time, so I’m controlling for a lot of variation by staying within the same agency thousands of times. And the result was: No, forfeiture does not predict clearance rates. There is no association statistically and materially between forfeiture rates and clearance rates. So just to give an example, suppose a police agency increases its use of forfeiture by 100% over three years. Did clearance rates improve? No, they did not improve.
Forfeiture and Drug Use Rates [10:29]
Bob Zadek: So and you looked at violent crime. Now, the government might say, “No, no, we are focused on drug crimes.” And that raises that dichotomy between focusing on drug-related crimes and violent crime is a very, very important and often overlooked relationship. And the reason I say that is the federal government in its equitable sharing is focused on, nationally, reducing drug use and drug crime. And they are different goals, but of course related. So the federal government has this very laser-like focus on drug crimes. However, citizens in communities around the country probably, highly likely, are much more concerned about violent crime. Because if you’re living in a town, you really—while you might very well care about drug use—you care more so about protecting your property, yourself, and your family.
So I think you have, in your study, you have reached some important conclusions on whether forfeiture affects crime at all, whether it disproportionately affects drug crime and has no effect and may even increase—you can comment upon this—violent crime. In other words, the federal government butts into an area that is exclusively and constitutionally the province of local government, and the federal government imposes its goals on local law enforcement. So if you could comment, Brian, upon this comparison between violent and property crime on the one hand and drug crimes on the other and how forfeiture affects it?
Brian D. Kelly: Sure. Let me be a little clear on the test I just described, because proponents of forfeiture will argue two things. They argue that it leads to greater policing of drug crimes because that’s one of their goals. And you’re absolutely right, Bob, that much of the purpose of the legislation is to get state and local governments to focus more of their resources on drug crime. But the argument I described a moment ago is what economists would call an “income effect,” which is that the police agencies have greater income due to forfeiture and therefore they’re more effective even at the crimes that don’t even involve forfeiture, like violent crime and property crime. So I’m dealing there with one of the proponents’ main arguments, which is police agencies are better off and therefore they’re more effective even on crimes that don’t involve forfeiture. So that was my conclusion in that respect.
Let me, if you’ll indulge me, describe my second test, which speaks right to your question. We asked: Does forfeiture, in fact, lead to less illicit drug use? Now, drug crime’s tough, right? How do you measure it? And so the data on drug crime basically is just arrest data, which doesn’t tell you very much. But we do have pretty good data from the mental health side from the federal government on illicit drug use through a series of surveys. We took those surveys—and this has never been done before—used a panel method again and followed in state subregions, we followed the path of illicit drug use in, I think it was probably about 300 or 400 state subregions, and compared it to the pattern of forfeiture. And once again, forfeiture does not predict any improvement in illicit drug use rates. There’s no association. Forfeiture up, is illicit drug use down? No, there’s no link there. So if one of the goals of greater drug policing is to reduce illicit drug use, hey, it’s not working. At least forfeiture’s not making it work.
The Jeff Sessions Perspective [12:31]
Bob Zadek: And what’s interesting is the forfeiture program doesn’t only indirectly focus on drug use. Now, many libertarians, certainly including myself, firmly believe that drug use itself should not get the attention of government. It’s not a governmental issue; it is a private issue. People are allowed to ingest whatever they wish so long as they don’t harm somebody else. That of course is a topic for another show.
But what is important is forfeiture may—probably doesn’t—but if anything, it might affect the sale of drugs and the supply of drugs, but not the use of drugs. So the best that forfeiture can do—it doesn’t do it—but the best that forfeiture can do is reduce supply but not demand, which just means that the demand is a constant, which means the supply goes down, the cost goes up, which means anybody who commits a drug crime in order to support a habit now has to commit more crime to support the same habit because the cost goes up.
Now, as we go to break, to help our friends out there focus on the point of view of law enforcement, I want to go to break, and right before I go to break, I’m going to read to you a very short sentence by one of the worst Attorneys General we have ever had in my opinion, Jeff Sessions, which was Trump’s first Attorney General. And here’s what Jeff Sessions said, and this is really in one sentence the target of Brian’s research. Jeff Sessions said, and this is a quote: “Civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed. And it weakens the criminals and the cartels.” That from Jeff Sessions. You have learned and will continue to learn throughout the hour how wrong almost every word in that one-sentence quote really is. This is Bob Zadek. We are having a wonderful conversation with Brian Kelly. Brian has applied the principles, the discipline of economics to analyze the effect of civil asset forfeiture on law enforcement and on how safe life is in America. More to come after the break. Please stay tuned. Lots more to follow.
[Ad Break]
Fiscal Stress and Forfeiture Incentives [18:31]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. In short, we will never stop. We have not stopped up till now, and we will continue, hopefully, close to forever in the future. Thank you so much for listening this Sunday morning.
We are speaking with Brian Kelly. Brian is an economist. And the importance of our conversation with Brian this morning is: it’s one thing to have an opinion about issues. Opinions are easy and, if you will, kind of cheap. It’s quite another to reach a conclusion which is purely data and scientifically arrived at and therefore is supportable by the facts in the world. That opinion gets to win the argument. And Brian’s conclusions are all data-driven. I often will say to people: I find what somebody believes or what their opinion is to be kind of boring as a standalone concept. I find it fascinating as to and of great interest to me as to why you believe what you believe. It’s the “why” that makes conversation interesting, not simply a catalog of your beliefs. When you ask Brian what he believes, Brian will say, “What I believe is because what I have learned through scientific analysis.” And thus, in a room, Brian gets to speak the most because he speaks with data backing up his opinions.
Now Brian, there’s a lot of cynicism by many, including myself, that once you allow law enforcement to retain part of what they take through forfeiture—remember, forfeiture does not require judicial intervention except maybe in some very, very light incidental procedural aspects, but really judges don’t get involved. It’s law enforcement takes your property, and a judge gets involved only if, God forbid, you want it back. Now, it’s easy to be cynical and say, “Well, I guess cops must do a lot of forfeiture because they want to do, as the IJ said, policing for profit.” Now, that’s an opinion. That’s cynicism. But what has your study shown and how did you reach the conclusion you reached that in point of fact there is a relationship and there is data-driven proof that forfeiture as a way to make money is not a suspicion but a reality?
Brian D. Kelly: That’s the third element of the third and last element of this study, is I looked at whether forfeiture, in fact, is driven by the financial needs of municipalities, of local government. So the first two planks were: Does forfeiture lead to more effective policing? Does forfeiture lead to less illicit drug use? Now I’m turning it on its head and asking, “Hey, what predicts forfeiture?”
And I’ll be honest with you, Bob, I’m not—I was not a big believer in the “policing for profit” aspect because I had read a lot of stuff on it and it was always anecdotes. And as you in your very generous introduction just pointed out, I’m data-driven and anecdotes are single data points. So I took a systematic look at this. I said, “Hey, if municipalities are undergoing fiscal stress, which means that the police agencies typically are undergoing fiscal stress, will forfeiture policing increase? Will forfeiture proceeds increase?”
And it’s very tough to get right at municipal budgets on a nationwide basis, but what you can get at is some really good correlates of fiscal stress. And one of them is the unemployment rate. As unemployment goes up, municipality tax revenues typically go down and their spending needs go up. So a rising unemployment rate is, by other authors, not myself, very heavily associated with fiscal stress. So I looked at my hundreds or thousands of municipalities over a period of 10, 12 years and I looked at their unemployment rates locally—you can get county unemployment data from other sources—and I said, “Hey, does the unemployment rate predict forfeiture? Will police pursue more forfeiture as unemployment rises?”
And honestly, to my surprise, I found the answer was a very powerful “yes.” As the unemployment rate goes up, the number of forfeiture actions, the number of assets seized, and the value of those assets goes up as well. And to close, the numbers are striking: a 1% increase in unemployment predicts an 8.5% increase in the value of forfeited assets and a 9.5% increase in the number of forfeited assets. So if you run, say, a 4% increase in unemployment—pretty big increase, but it happens—you’re predicting over a 30% increase in forfeiture actions.
Distorted Priorities and Highway Interdiction [21:17]
Bob Zadek: Which is pretty conclusive that forfeiture is not done because police are determined to do a better job at reducing crime and they have concluded that forfeiture is an effective tool in doing that. It’s not that police have decided to—I’m sorry.
Brian D. Kelly: I mean, there can be more than one explanation, Bob. So I tested whether fiscal stress was one possible explanation. I can’t exclude what you just said.
Bob Zadek: Of course. Okay, and I’m not saying that police are never motivated—thank you for the correction—and I’m not at all suggesting that police are only motivated, that police have not become simply a profit center for local government. But we do find that there is a correlation, a direct correlation, between municipalities which control local law enforcement having financial needs and an increase in the events of civil asset forfeiture. So it’s pretty persuasive that at least that is a contributing factor.
And of course, as you know as an economist and as you have pointed out, anecdotes prove nothing except the anecdote itself, but you cannot expand an anecdote as being proof of a circumstance. But there has been lots of stories in the media from time to time using as a similar law enforcement device the writing of tickets where local law enforcement, mayors and city councils have encouraged if not castigated local law enforcement for not writing enough tickets because they “need the money.” So there are lots of anecdotal stories.
And indeed, there are also related stories where many cities and towns around the country are resorting to a similar device, which is using code enforcement, where they will fine you if you’ve not mowed your lawn or painted your house or had these code violations, and they have used aggressive code enforcement as a way to make money locally. All of that is various symptoms of the same motivation. Economists who study this, specifically James Buchanan, will call this the proof of the “public choice theory.” And James Buchanan and many others have observed that just because somebody works for government as opposed to the private sector doesn’t mean they are not motivated by the same human failings. They are not possessed of the same human failings and goals that people in the private sector, like career enhancement, building the amount of dollars you control, things like that. So just as in private business people seem to want to enhance their careers, well, similarly in government. So this is not anything that singles out police; police and those people who control decisions and policy in police departments are simply human beings, and they need the money. They go into their toolbox, and one of the tools in the toolbox that they have—one of the tools is civil asset forfeiture. So this is not singling out law enforcement as being especially bad; it’s singling them out as being just plain human. So we are not suggesting, Brian, at all that there’s something unusually wrong about law enforcement. They are given the tool, and they use it lawfully.
Brian D. Kelly: Right. I’m glad you clarified that. And also, when you talk to local law enforcement, one thing you do hear quite a bit is forfeiture is just really convenient. It’s a way of dealing with assets and not keeping them impounded and so on. But the reply to that is: Hey, most forfeitures are of cash; it’s not a property. And second, there’s other tools besides forfeiture that you could use for the same purpose.
Bob Zadek: Now, anecdotally, I think there’s a story about where police were doing traffic stops on an interstate highway going in and out of a municipality—it was I-40 or I-80—and how they selected whether to stop the eastbound or the westbound traffic. I think that was mentioned. Can you share with us that story as an example of how police are motivated?
Brian D. Kelly: Sure. That’s an anecdote, but that’s a series of anecdotes actually on that theme. And they keep arising, and they are pretty telling. I’ll go back to one of the most spectacular, which is in Florida. The northbound traffic involved in the drug trade is typically carrying drugs, and the southbound traffic is typically carrying cash near the northern Florida border. And police rather notoriously would let the drugs go. They weren’t stopping the northbound cars even when, through confidential informants and so on, they knew that they had drugs. And they were stopping the cars coming back south that contained cash. And so that’s a very well-supported anecdote. But there are many others along the same theme: that police are not picking cars at random and not always—and it varies tremendously by police agency—but not always so much trying to stem the flow of drugs as to stem the proceeds of the drug trade, which of course leads to forfeiture.
Bob, let me add one thing because there’s a lot of confusion on this. In fact, President Trump showed he didn’t understand it a couple years ago. Forfeiture doesn’t refer to contraband. So if the police seize—you know, these great television moments when they seize $20 million worth of cocaine—that’s not $20 million of forfeiture. That’s zero dollars of forfeiture; it’s not even called forfeiture. So destruction of contraband is not forfeiture, and that can go ahead regardless of the forfeiture laws. And unfortunately, some people, I’m afraid including our President, think that forfeiture refers to seizing the contraband itself. It does not.
Bob Zadek: And that has nothing to do with forfeiture. Forfeiture, as I mentioned and thank you for helping me correct what I mentioned too quickly in the introduction, forfeiture involves the confiscation of private property which is either used, suspected—probable cause is required—suspected as an instrumentality in the commission of a crime, like a car where you drive to transport drugs. A car is used in the commission of a crime, or it is the fruits of the crime—the car was bought with drug money—or money itself being the fruits of the crime. And so when a police can find cash in a car, now they—cash alone, nothing wrong with it. But they have to find a link to the cash and the commission of a crime, and then they can effect forfeiture.
And of course, as Brian pointed out, to catch the drugs, when they police capture the drugs, they don’t get to keep part of it under forfeiture rules. They simply have to confiscate it because it’s illegal; possession of that quantity is illegal. If they grab the cash on the return route, that they get to keep all or part of under equitable sharing principles.
Now, there was also a highway interdiction program, I think in South Carolina, which was called somewhat ominously “Rolling Thunder.”
Brian D. Kelly: Yes, there was. And that had a rather similar to, of course, the Florida story, which is that on I-85 and I-26 in South Carolina, police were pulling cars aside and collecting any drugs or other contraband, but also drug money on the interstates. Now, one thing your listeners still may not appreciate enough, Bob, although you have said it: the police do not need to arrest anyone to do this. They can let the driver go after they take the cash. And indeed, drivers are often coerced into signing a form saying they will not dispute the seizure of the cash, the alternative possibly being arrest. And so when I have almost quit explaining forfeiture in seminars and so on, because people don’t believe me. They think I’m making it up. Police can’t do this. But they can do this.
My brother—give me just a moment here—sent me a very nice article from the Sacramento Bee, so it’s in your listeners’ area, from last year—shout out to my brother Brendan on this—where the feds seized 100 homes. And you go through the article; the homes were involved in marijuana grow operations, and evidently the feds objected to that. 100 homes valued in the hundreds of millions, the article says. At the very end, near the end of the article, it says rather casually, “No arrests have been made.” And yet those homes were seized and the US Attorney for the Eastern District of California is talking about how much money is going to be made from them quite proudly, and yet no arrests were made. And so it is one of those things that makes you say, “What?” when you hear about it, but it is a fact.
Bob Zadek: Brian, have there been any other economic studies with the same rigor as yours that either support or challenge some of your findings, or is yours a standalone and you are the gold standard for economic analysis on drug forfeiture?
Brian D. Kelly: Well, there have been other studies. I do think that mine, for the questions I asked, are much richer, a much deeper data set. IJ has cooperated with some other academics, some other authors, on another aspect of forfeiture or equitable sharing we haven’t talked about. I’ll just mention it in passing. Many states have forfeiture reform efforts underway. And in some states, it can be quite difficult to pursue civil asset forfeiture or even impossible. But what local police agencies can do is apply to the federal government to “adopt” a seizure that they make, or they can work with the federal government otherwise—equitable sharing—and thereby have the asset seized under federal law and circumvent the state prohibitions on forfeiture. Now, there’s very, very good academic studies on that because the data on that are unusually available. So that’s an important forfeiture area that’s been explored by academics. Otherwise, though, yes, it’s a horrifically difficult research area because the data sets are so complicated and so extensive, and I’m afraid there’s not a great deal of other stuff out there. There is work going on right now.
The Future of Forfeiture Reform [27:54]
Bob Zadek: Now, I’ve—we’re running out of time. I have two points I want to spend the rest of our hour together on. Number one, I had mentioned in the introduction and I would like to explore it a little bit more with equitable sharing and with the interaction between federal law—federal law providing the motivation—and local law enforcement. They are the boots on the ground. It in effect, through economic incentives, induces local law enforcement to ignore property crimes and violent crimes because the police do not get forfeiture income from that, although that’s what their customers, the citizens, care about. So the effect of equitable sharing is it imposes federal incentives to change how police spend their day at the expense of what citizens would want their police to do. Is there much data supporting the natural decision that local law enforcement would make to, with limited resources which everybody has, to make a conscious decision to devote resources to drug crimes, which maybe the citizens don’t care about, and at the expense of violent and property crimes, which the citizens do care about?
Brian D. Kelly: Sure. An earlier study I did that was published in 2016 looked at that. And the way I looked at it was: Has the proportion of drug arrests out of all arrests—so to measure police activity on drugs, correct?—in particular on—well, has the proportion of drug arrests increased over time, and is it linked to what’s sometimes called an agency’s dependence upon forfeiture? So does increase—there’s a lot of statistical issues with doing this, Bob, but basically it’s: Does dependence on forfeiture predict greater proportion of arrests for drugs? Other authors looking at data from the ’90s said yes, they said very strongly. And so that’s an affirmation of what you were just saying. I looked at the ’00s, 2000 through about 2009 in that earlier study, and yet the answer was yes, statistical significance, all that, that forfeiture is leading local police to spend more time on drug policing. But it wasn’t a big effect. And what’s happening is—you can’t spend more than 100% of your time on something—the proportion of time spent on drug policing is far higher than it was before forfeiture came into play and equitable sharing we’re really talking about early ’90s for that. So it’s increased a lot but kind of plateaued now. So if you look at the data for the ’10s, you aren’t seeing a lot more resources going to drug arrests; it’s kind of as high as it can go.
Bob Zadek: So what Brian has just said is we have something which is exclusively the province of localities, which is the police power. And police power means more broadly than just cops; it means protecting the health and welfare of citizens. That should be exclusively the province of localities, but the feds have found their way by economic incentives to change that. So we, the local citizens, don’t get to control how our police spend their day. It’s a distortion of our principle of federalism.
Now Brian, my last question—and then we’re going to run out of time regretfully—is: Do you have any idea, do you know how your study has been used to date in actually affecting or starting to affect the change in civil asset forfeiture laws, both at the federal and state level?
Brian D. Kelly: Well, so far, of course the study’s quite recent; it only came out in July. So it’s hard to point to specific elements. But fortunately, I’m working with Institute for Justice on this, and as you know, they have a sophisticated program of state reform efforts. So I hope, I believe that they are using the results of my study to push those efforts forward. Unfortunately, if you want to look at reform in forfeiture, you have to look to the states. The feds aren’t doing anything right now. There was a reform in 2015 under the Obama administration that was quite helpful in equitable sharing, but it was largely reversed under your favorite Attorney General, Jeff Sessions. And so forfeiture reform at the federal level—Congress is holding some good hearings, there have been some good bills introduced, but I don’t see them as being passed into law for at least the next year or two.
Bob Zadek: I am hopeful that you will find yourself in need of an agent to handle the scheduling of all your appearances before state and federal commissions who are looking into this issue. Because one cannot—as John Adams said in the trial of the Boston Massacre, “Facts are stubborn things.” John Adams was right, and you present the facts, the very stubborn facts, which ought to persuade legislatures to do the right thing. Brian, thank you so much for sharing what you have learned with our friends out there. When we have data-driven support for our conclusions, it just makes us feel we are on the right side of an issue. Thank you so much, Brian, for your work. We all truly enjoyed what you had to share with us.
Brian D. Kelly: Thank you, Bob. I appreciate being on the show.
Bob Zadek: Have a good Sunday. And to all my friends out there, enjoy the rest of the Sunday and the rest of the weekend. I’ll be back again next Sunday. I look forward to it.