Cops Are No Better Than Criminals
2011-10-22 · Guest: Mike Riggs (Reporter for Reason magazine) · 49:59
Civil asset forfeiture and property rights
Bob Zadek and Mike Riggs of Reason magazine discuss the controversial practice of civil asset forfeiture. They explore how current laws allow law enforcement to seize property from innocent citizens without criminal charges, creating perverse incentives for “policing for profit.”
Topics: Civil Asset Forfeiture, Property Rights, Policing for Profit, Due Process, Institute for Justice, Fourth Amendment, Fifth Amendment, Henry Hyde Amendment
Speakers:
- Bob Zadek - Host
- Mike Riggs - Reporter for Reason magazine
- Scott Bullock - President of the Institute for Justice (Audio Clip)
- Radley Balko - Investigative Reporter (Audio Clip)
Introduction to Property Rights [00:16]
Bob Zadek: Sunday at noon, welcome to the Bob Zadek Show. I’m your host, Bob Zadek. Every Sunday at noon on 910 AM Fox News Radio, the leading libertarian talk radio show in the Bay Area and around the country. 800-345-5639 is the way to have your point of view heard by my audience around the country. Thanks so much for listening.
About 250 years ago, in the American colonies, the cry went out: “No taxation without representation.” In other words, the colonists felt it to be a call to arms that government could take property without the consent of the governed. Property was always in our country very, very important, obviously. John Adams said in 1787, quote, “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny shall commence.” The Constitution says no person shall be, quote, “deprived of life, liberty, or property without due process of law.”
Defining Civil Asset Forfeiture [00:44]
Bob Zadek: Yet today, in 2011, in states and municipalities around the country, the police are authorized by statute to take your property without due process of law because the law gives them the right to do so, and to retain your property, imposing upon you the burden of proving your entitlement to it. Can anything be less American than that? And yet the power of the police to take and retain your property is embellished in statutes in about 47 of our 50 states and in the federal government.
The type of laws are called civil forfeiture statutes, and they are pervasive. These are statutes in most states that allow the police to take your property under the very flimsiest of reasons and to keep it, and impose upon you the burden to get it back, and the expense and the time to get back your property, even though there is no accusation that you did anything wrong. Civil forfeiture is today’s topic. It is an area where libertarians and progressives and people along all areas of the political spectrum ought to agree. Civil forfeiture statutes are tolerated, and they should not be tolerated. They permit the police to take and retain your property.
To help me and you understand this really important issue that goes to the heart of the property rights system of our country, I’m delighted to welcome for the first time on my show, Mike Riggs. Mike Riggs is a reporter for Reason magazine, has studied this issue. Mike, thanks so much for joining me.
Mike Riggs: Yes, thank you, Bob, for having me on the show.
Bob Zadek: Mike, do I overstate the issue? Am I using extreme hyperbole when perhaps it’s inappropriate?
Mike Riggs: No, I don’t think you are, Bob. Mostly because now, granted, it may—if nobody’s ever heard of asset forfeiture before, they may think you’re using hyperbole, but that just means asset forfeiture laws haven’t affected them yet, is how I would put it. For people who have been affected by asset forfeiture laws, you are not exaggerating. People have lost their houses, they’ve lost their cars, they’ve lost their investments, they’ve lost their savings, they’ve lost heirlooms, personal items, all under a law that basically says the burden of proof is on the person who is having their stuff taken by the police or the federal government. It’s not on the person doing the taking.
Bob Zadek: Now, just to sort of set up the issue, if you will, there are, of course, criminal forfeiture statutes that nobody would oppose. Under criminal forfeiture statutes, criminal law due process apply, and if the police—if you are convicted of a crime with all of the safeguards involved in the prosecutorial process, with you getting due process, having a lawyer where the Constitution is honored, and you’re convicted of a crime, then what is called the fruits of your crime—the what you have purchased with the booty you have gotten from your crime, or the tools that you’ve used in the crime—can be confiscated, and nobody is especially upset about that. Indeed, we all would endorse it. We are not talking about that. We are talking about civil forfeiture, which means we are not talking about criminal law at all. We are talking about innocent people who are not accused of committing a crime, nor did they commit a crime, but nevertheless, they lose their property.
The Edinburg Strip Club Raid [02:50]
Bob Zadek: Now, just to set it up, Mike, you have studied many horror stories. There’s that story about that you wrote about involving Texas cops at a strip club where the police had a field day confiscating private property not involved in a crime.
Mike Riggs: Oh, that they did. So the setup for this, Bob, is this was in Edinburg, Texas, in Hidalgo County. So Edinburg decided to annex parts of unincorporated Hidalgo County. So, you know, neighborhoods and areas that weren’t part of any city, they were just part of the county tax base. One of the things that they annexed, they annexed a piece of land that did have an adult entertainment club, a strip club on it.
Bob Zadek: Totally legal. And it was legal.
Mike Riggs: It was legal in the county, and under Edinburg policy, it was supposed to be grandfathered in. Now, technically, even though the strip club was in the middle of nowhere, Bob, the city said, you know, strip clubs have to have super specific zoning, you all don’t comply, but the Edinburg law says you’re grandfathered in. Well, so, you know, so even though the law says you’re grandfathered in, we all know that municipalities and states and even the federal government have sort of workarounds to pressure private businesses that they don’t like. So the workaround that the Edinburg Police Department came up with was, let’s conduct a drug raid because, you know, strip clubs are seedy, who’s ever going to question that there were drugs here or not?
So the Edinburg Chief of Police shows up with 40 of his men—who knows, that may be the entire Edinburg police force. It’s not exactly a sprawling metropolis. He sets up a lawn chair in front of the strip club. They turn off the water to the building so that nobody can flush any drugs—I think that’s standard procedure for a drug raid. And then they storm the place. They didn’t find any drugs. But you know what they did find? They found iPads, they found laptops, they found wallets, they found watches, they found cash, and they found a sort of like a token that the strip club gave out to customers. Mind you, most of the stuff they found, with the exception of the hard cash and the tokens, belonged to customers. They took all of it, Bob. They didn’t find any drugs, they found a lot of nice expensive loot that belonged to private citizens who weren’t breaking the law, and they took it. And they didn’t document it, and they left, and as far as I know, they haven’t given it back yet.
And the reason they can do this, again, you talked about the distinction between criminal forfeiture and civil forfeiture, is in criminal forfeiture, if you get rich selling drugs and then you get convicted of selling drugs, the money you made selling drugs, the state can take it. If you bought cars selling drugs and you’re convicted of selling drugs, the state can take it. However, civil forfeiture law basically says that the crime was committed by the property, not by the person. So, and obviously objects can’t commit crimes, so the way that this is interpreted is that the objects were used in the commission of a crime. Now, there doesn’t have to be a person tied to that crime. There just has to be some argument that a police officer or federal agent will make saying, “We couldn’t find any drugs, we didn’t see anybody selling drugs, but we think, you know, that this car was used to sell drugs.” Or in the case of the strip club—granted, the Edinburg Police Department hasn’t made this argument because they haven’t documented it—the assumption was that all this nice stuff we found had to be somehow associated with drugs.
Bob Zadek: So we had an iPad who was dealing drugs.
Mike Riggs: Oh yeah, an iPad dealing drugs. Or maybe—I mean, you know, the police are not quite that cynical, they’re not going to go before a judge and say, “Yes, this iPad was selling drugs, we’re going to lock it up.” They’re going to say something like, “We suspect a drug deal was coordinated on this iPad.” Now, the police don’t have to prove that. What has to happen is the person who owns the iPad has to present conclusive evidence to a court saying, “This iPad was not used in a drug sale.” Or, “These tokens that I got for being a frequent customer to this club where I like to maybe blow off some steam on Fridays, I did not use those tokens in the commission of a drug deal. Here’s my proof.” And the reason civil asset forfeiture is so scary is you tell me: how do you prove that you didn’t use this thing to commit a crime that there’s no evidence of ever having happened?
Bob Zadek: I guess you have to show that your iPad was a member of the clergy or something like that.
Mike Riggs: Yeah, exactly. Or that it wasn’t in the club when this alleged crime that there’s no proof of actually happened. I mean, it’s absolutely ridiculous.
The Case of Anthony Smelley [05:42]
Bob Zadek: Now, Mike, your colleague Radley Balko at Reason described the case of Anthony Smelley where just such a thing happened. Do you recall the case?
Mike Riggs: I do. I can tell your listeners all about it if you like.
Bob Zadek: Sure, go ahead.
Mike Riggs: Okay, so around 2009, Anthony Smelley and his friends were driving through Indiana on the interstate. They were going to visit Smelley’s—Smelley claims they were going to visit his aunt—and they got pulled over. Smelley had recently received a—
Bob Zadek: He got pulled over for making an illegal lane change.
Mike Riggs: Yes, yes, that is correct. They were not speeding, the car was not swerving. In fact, let’s just say right up front that if it hadn’t been for the fact that Anthony Smelley was carrying $17,000 in cash, he probably would have been written a $50 ticket and sent on his way. But Anthony Smelley, prior to taking this little trip to go visit his aunt, had received a $50,000 settlement from a car accident. And he claims he had $17,000 in cash that he was going to give to his aunt. So, he gets pulled over. The officer asks him for his license. Anthony says because he had just been in a car accident, he didn’t actually have his license on him. The officer looks up Anthony Smelley’s name, sees that his license has recently expired. Then he looks—he does a little more digging on Anthony, calling into the station, and finds out that he had been charged with drug possession when he was a minor.
Bob Zadek: Charged but not convicted.
Mike Riggs: No, not convicted. So, he tells him to get out of the car. He frisks him. He finds this roll of $17,000 on Anthony Smelley, and he takes it. Doesn’t charge Anthony Smelley with a crime. Doesn’t charge anybody in his car with a crime, even though he did find a glass pipe that could be used for anything, but is generally used for smoking marijuana. It had no marijuana residue in it. Actually, it was his passenger—exactly, it was a woman in the car, she had it in her purse. So again, Anthony Smelley, if you want to be super strict about his crimes here, his crimes were changing lanes without signaling and having an expired driver’s license. Again, in almost every state in the country, you get a citation for that and you’re sent on your way. Anthony Smelley, though, was carrying all this cash. The officer put all these elements together in his mind, he constructed a narrative, and the narrative was: Anthony Smelley, when he was a kid, got caught with drugs. No, he didn’t get convicted for it, he just got caught with them. His girlfriend or some passenger in his car’s got a glass pipe in her purse, and he’s got $17,000 on him. Well, under civil asset forfeiture laws, that officer has basically an airtight case to claim in his report that somehow—again, he doesn’t have to prove it, he doesn’t have to prove there was a crime—but he can make the claim, and he did, that somehow that $17,000 had to be tied to drugs, which are illegal, drug sales. He doesn’t have to disprove Smelley’s claim that the money came from an insurance settlement, he can just say, “Smelley got caught with drugs once before, a woman in the car has a clean glass pipe in her purse, this money was related to drugs.” So the officer confiscated it. Anthony Smelley has not gotten that money back even though he’s fighting for it. I mean, $17,000—we’re in the middle of a recession here, Bob—$17,000 is a heck of a lot of money. He’s not getting it back. He also hasn’t been charged with a crime. Nobody in his car was charged with a crime. I mean, this is the crazy thing about civil asset forfeiture laws. Nobody did anything wrong except that money. Apparently, that money committed some crime that the officer doesn’t have to prove.
Bob Zadek: And so the problem is that in a criminal case, there is a very high burden of proof that has to be overcome by law enforcement before they get a conviction, and with the conviction gets the criminal forfeiture. But in a civil case, there is only what’s called at law “probable cause,” which means enough to support the suspicion that maybe if you put the dots together, maybe a crime has been committed. That is sufficient under civil law to effect the forfeiture. And now Smelley—his $17,500 gets taken from him because he did a lane change. That’s one mother of a fine for a lane change. It gets taken from him and he’s got to hire a lawyer and prove that the money didn’t come from the commission of a crime, and all he did was change lanes and have an expired driver’s license. That’s the mother of all fines. And so Smelley—the postscript is, Smelley actually ultimately, about nine months later, got his money back.
Mike Riggs: Oh, that’s great. That’s great that he got his money back.
Bob Zadek: He prevailed ultimately, but look what he had to go through. And is that the way the system is supposed to work? And remember, none of this would have happened had not the police had the incentive where that $17,500 would have gone into the asset forfeiture pot to be used by the police.
Perverse Incentives and Scott Bullock [08:31]
Bob Zadek: Now, we have a very nice quote from Scott Bullock. Scott Bullock is the chairman or the president of the Institute for Justice. And here’s a very nice quote from Scott Bullock describing the problem.
Scott Bullock (Clip): When you give people the wrong incentives, people respond accordingly. And so it shouldn’t be surprising that they’re stretching the definition of law enforcement. But the fundamental point is you should not have people who are out there enforcing the laws benefiting directly from them. Police and prosecutors are supposed to be about the fair and impartial administration of justice, not about the pursuit of property. And that’s what—that’s the major problem with civil forfeiture laws, and that’s the thing that really has to change.
Policing for Profit [09:31]
Bob Zadek: So the problem is, as Scott Bullock has just explained, the problem is that there is a perverse incentive. It is just like I opened the segment with: imagine meter maids on a commission basis. It is the same thing when law enforcement is given a private motivation, a selfish motivation to interpret the laws in a certain way where they get a benefit. Everybody responds to economic incentives. That is human nature. I dare say I would probably have that bias if I were in law enforcement. So the problem is the statute gives police the incentive to be very aggressive, and we property owners are the ones who take it in the shorts.
Private property is an interesting concept. When I talk with my friends on the left and we are sitting having lunch or whatever and engaging in a political conversation—my favorite activity, or at least it’s in the top five—and we are talking, I find that an area that we seem to disagree is the importance of private property. Folks on the left just do not seem to respect the importance of private property in the way that John Locke and the founders of our country did. Most third-world countries understand that if they want to enter the second world or the first world, the first step is to build a civil law system that respects private property. That is the foundation on which every sensible economic system is based. You must respect and protect private property. Yet property rights seem to be taking in this country a backseat. It happens with taxation, which of course is the denial of property rights to some degree, the appropriation of property rights by the state for the common good. And in today’s topic, which is civil asset forfeiture, which starts with the presumption that private property rights have to take a backseat. And the problem is that under civil asset forfeiture, law enforcement gets to keep the booty, gets to keep what they confiscate.
Margarita Machines and Hawaii Trips [12:13]
Bob Zadek: Now, one of Mike Riggs’ colleagues, Radley Balko, has summarized the issue pretty nicely.
Radley Balko (Clip): So with budget cuts coming, this must be very tempting for the police. Well, it is tempting, and there are lots of crazy stories about what they do with this money when they have it. There’s a district attorney’s office in Texas, for example, that used forfeiture money to buy an office margarita machine that won first place at a county fair in a margarita competition. There’s another district attorney in Texas who used forfeiture money to take a junket to Hawaii for a conference on asset forfeiture. And I understand that he was asked, “How could you possibly do this?” and his response was, “Well, a judge signed off on it, so it’s okay.” They found out later that the judge that signed off on it actually went with him on the junket to Hawaii.
Bob Zadek: So there you have it. And the loophole that law enforcement takes advantage of in the history, in the evolution of civil asset forfeiture cases, the linchpin is that the proceeds of the forfeiture have to be used—and if you want to hear some loose words—for “law enforcement purposes.” So the US Supreme Court has said so long as the forfeited assets are used for law enforcement purposes, without going into detail, that is okay. Thus the margarita machine for the office, which increased police department morale, was found to be comfortably within law enforcement purposes. Mike, law enforcement purposes?
Mike Riggs: Yeah, basically, if it’s a legal activity in the private sector, you can bet that there is a police chief or a district attorney somewhere in the country trying to figure out how to do this. I mean, Bob, it can be pretty heinous sometimes.
The Motel Caswell Case [13:41]
Mike Riggs: Think about, for instance, cases in which a teenager is pulled over with drugs in the car, driving, you know, a car that mom and dad still haven’t paid off, maybe the family’s only car, maybe the family’s second car, whatever, it’s still theirs. They still own it. But because, you know, their 16-year-old kid got caught with pot in the car, cops can take the car. And, you know, sometimes they auction those things off, the money goes right back in their pocket. Sometimes they turn them into undercover cars, and that’s their car, you know? And sometimes people who got privileged within the police department will drive that as a second car or something. They can take whatever they want. They can take houses.
There is a case going on right now in Tewksbury, Massachusetts, the Motel Caswell, a family-owned motel valued around a million dollars. Over the last 20 years, about half a percent of their guests—half a percent, 0.05% of their guests—were caught using drugs. And they were caught using drugs because the Caswell family called the police when they thought somebody was using drugs in their hotel. And let’s just point out real quick aside here, 0.05% is a much lower drug use rate than you see in the general population. Well, the Department of Justice right now is trying to use civil asset forfeiture law to take the Caswells’ hotel from them for the crime of them calling the police to say that people were using drugs in their hotel. And the language that the DOJ is using to take the Caswell hotel is that the hotel itself was involved in drug crimes. Not that the Caswells facilitated this or invited it or, you know, provided drugs or sold drugs or turned a blind eye. It was that because people used drugs in that hotel, the hotel had committed a crime and the state was going to own it.
Bob Zadek: It infuriates me. And what happens is, if local law enforcement or perhaps federal law enforcement wasn’t given the incentive that if they effect a forfeiture of the hotel, they get to keep the money, the hotel, or the proceeds when it’s sold at auction, I doubt that they would spend public resources to do that. Who were they targeting? An admittedly law-abiding family who was running an honest business, doing nothing wrong. Why in the world would law enforcement have them as a target? But it is the incentive that they are, to use the Institute for Justice phrase, “policing for profit.”
Mike Riggs: Exactly. And you know, in the sort of—I don’t want to—“ironic” might not be the best word here, although I think it rings true—is that these laws came about in the 1970s and ’80s when the US was experiencing a new wave of prohibition backlash, and that was drugs coming—harder drugs like cocaine and heroin coming from Colombia into the United States. And so they added this to the RICO Act, or beefed up civil asset forfeiture as part of the RICO Act, which is how you prosecute a large organized crime ring even if you can’t pin a crime on every single person involved in the ring. If you can prove that they’re associated, then you can get them all. So this is where it came from. And we don’t have a whole lot of organized crime or powerful organized crime here in the United States anymore, but the incentive is still there for police officers to look at their jobs not as to sort of smooth disruptions in the social fabric—which when you want to think about a good police force, you think a good police force, their job is not to run society, it’s to remove elements of society that want to stop it from running. No, but the police officers in the wake of asset forfeiture laws being beefed up in the ’70s and ’80s, their idea is: if I can see an opportunity to take property from a citizen, I’m going to do it because the law says I can do it, legislators are encouraging me to do it, my employer is encouraging me to do it, a judge says I can do it. They’re going to do it. And they’ve gone from doing it basically to drug runners who are running drugs from Central America all the way—although they still do this to people affiliated with cartels—but they’ve gone from focusing exclusively on that people to going after moms and dads and kids and grandparents and hotel owners, basically anybody who has the slightest impropriety in their life. And mind you, these are not improprieties that normally end up being going to court. I mean, roughly 80% of civil asset forfeiture cases, the person who is having their stuff stolen is never taken to court, much less convicted. Their stuff is just taken. We’ve seen this in medical marijuana dispensaries. DEA agents and local law enforcement, because if local law enforcement cooperate with the federal government in a raid of some sort, they get a kickback for it. They go into a medical marijuana dispensary, they take everything. They take the scales, they take the money, they take computers, they take the product, and they don’t arrest anybody. And they don’t press any charges. They just take all that stuff.
Forfeiture and the Banking System [15:19]
Bob Zadek: And they also take the land. And if the land was subject to a bank mortgage, the bank will lose the mortgage property. My first exposure—I do commercial lending for a living, that’s my day job—and my first exposure to civil asset forfeiture, I remember I had a client in Miami. That was significant. And my client was a bank, and the bank had given a first mortgage on a residence. And the bank called me one day because they had the following problem: the federal government was confiscating under civil asset forfeiture this private residence and telling the bank, “You lose your mortgage, we’re taking the house.” And the bank said, “What did we do wrong? We just gave a mortgage.” Well, the feds said, “You knew or should have known this guy was a drug dealer, therefore you knew you’re not innocent.” Because if the bank could show they were innocent, they would win. The bank said, “What do you mean? How did we know?” Well, the feds said, “Well, look, he made the down payment in cash, and he was from Colombia.” And the feds used the fact that he was a Colombian citizen as a red flag that the bank should have known. And the bank says, “A lot of people buy houses for cash, not a majority, but enough that we don’t flag it.” So the lesson to the bank was, first of all, they lost the house. Second of all, they better not make a loan if somebody’s paying the down payment in cash, and they better not make a loan to Colombians. So the whole thing is so abusive. And that was back in the ’80s when they were first using civil asset forfeiture statutes as a tool to combat the law on drugs.
State Grades and the Hyde Amendment [18:13]
Bob Zadek: Now, it should be mentioned that the abuse was recognized, and in the year 2000, Henry Hyde—who is deceased now, but who was a Republican member, an important member of the House of Representatives—enacted a piece of legislation called the Hyde Amendment, which substantially offered a lot of protection to individual property owners whose property was taken by the feds. But what is significant is the Hyde Amendment only affects federal law and not state law. And the abuses now are at the state level where there is no statute that gives any protection to property owners.
The Institute for Justice did a 50-state survey and they rated A, B, C, D, or F the state civil forfeiture statutes. And they found 47 of the 50 states were rated D or F in terms of protection of the citizen. California—I happen to be in California—California was rated overall a D as its final grade, and an F for the way the states evade federal and state law. So California, although it prides itself as being very populist and protective of citizens’ rights, in this regard, protecting innocent citizens, California gets a D. And the abuses are, as we discussed earlier, there was a case where the DA was using the proceeds to buy football tickets to college football games with the proceeds, and that was found to be a law enforcement purpose.
Reforming the System [19:41]
Bob Zadek: Now, there’s a lot of “to-dos” that we can do to fix the problem. Mike, has Reason magazine studied or prepared a list of how to fix the problem?
Mike Riggs: Well, every time we’ve written about it, we sort of have the thing we hit on the most is that obviously, you know, if you’re a libertarian, you’re familiar with incentives. You think about incentives, you recognize that most of the problems we have in this country, whether it’s crony capitalism, whether it was the mortgage crisis, whether it was the dot-com bubble, whether it’s inner-city crime, it’s all about incentives. It’s what are the things that government is creating that encourage bad behavior, even well-meaning things that are supposed to encourage good behavior but end up encouraging bad behavior. So obviously the first thing you talk about, you want to talk about is incentives. Like these police officers are not bad people, but legislators—although it is a vicious cycle—legislators created these laws in the early ’80s. Well, they beefed up forfeiture laws—I mean, there have always been ways for the state to take property from people—but, you know, legislators beefed up these forfeiture laws. Police departments, federal agencies started making a lot of money off them. So when it came time to review these forfeiture laws, police groups, law enforcement groups suddenly began to lobby for them to be more expansive.
So you’ve got that on the one hand, and then on the other side, there’s looking at it from a sort of constitutional angle, which is saying—which is acknowledging that civil asset forfeiture laws, unlike criminal forfeiture laws in which you have to be convicted to have your property taken away, and your property can only be taken away if it was at all used or gained as a result of your crime—civil asset forfeiture laws are essentially a way to punish someone without ever trying them. It is a total circumvention of due process or a fair and speedy trial. It’s basically saying, “We don’t have enough evidence to convict this person of doing anything wrong,” or in the cases where they do, in the cases where they find a trace amount of marijuana, if that went through the criminal system, if that went through the court and you were convicted somebody of a misdemeanor possession of marijuana, a judge is never going to grant you permission to take their home or their car or their belongings or to sell their prized possessions. But under civil asset forfeiture laws, if you can make the claim that this stuff was used in the commission of a crime, then you can take it away. So when we talk about reform, it’s looking at two sides: it’s changing incentives for law enforcement agencies, it’s making people aware of what’s going on, and then it’s going to legislators, it’s pressuring legislators—I mean, it has to happen—to say, “Look, what you’re doing is theft.” And that’s also how we need to talk about it. That’s the most effective thing we can do right now is raise awareness by pointing to civil asset forfeiture as theft. It is theft. It is like the IRS coming to your house even though you’ve completed your taxes perfectly and saying, “You have too much money, we’re taking some of it.”
Bob Zadek: You know, it’s a lot of—I don’t want to get technical or legal, but there’s one concept that can’t be avoided. In a criminal case, in order to protect people from losing their liberty, which of course is so crucial to the workings of a free society, the government, the state is required to prove guilt by “clear and convincing evidence,” a very high standard. However, in civil forfeiture, all the government’s got to show is a “preponderance of the evidence,” which means more likely than not to have been used in the commission of a crime. If you simply raise the standard to the criminal standard, then most of the abuses would go away. And on top of that, take away having cops work on a commission basis, like the meter maid getting paid 20%. Imagine a meter maid who got paid 20% of all the tickets she wrote, and imagine how many more tickets she or he would write. Well, that’s the same thing. We have to be offended by a law enforcement system that pays cops directly for finding property used in the commission of a crime. We have to, as Mike said, get rid of the profit motive. Get rid of, as the Institute for Justice calls, “policing for profit.”
And I am not suggesting at all, nor I’m sure is Mike, that cops are inherently bad, but everybody responds to incentives. That is as core human nature as it can be. People, if you pay people to do something, they are more likely to do it. If you reward them, they are more likely to do it. I saw an interview with a small-town, well-meaning—I liked this guy a lot—district attorney. He was the guy who was prosecuting these cases. And he was asked to defend civil forfeiture cases in light of the strong, compelling argument against it. And he said, “It’s a penalty.” And so his worldview was that these people, like Anthony Smelley, somehow did something wrong. But they didn’t. Remember, they didn’t do anything wrong. Through some accident of fate, through an occasion of a bunch of circumstances, they lost their property. And when the state is used to take somebody’s property, it destroys the respect for law, it destroys the core relationship between citizens and its government. So this is civil forfeiture. It cannot be less, if you will, American. Less true to our principles. It cannot be any less true.
This is Bob Zadek, thanking Mike Riggs for joining me for the hour. We were talking about civil asset forfeiture, the policing for profit. Thanks so much for listening. I’ll be back happily next Sunday to share another hour of libertarian perspectives. Thanks so much for listening.