By Robert Gebelhoff
The Washington Post
When U.S. Customs and Border Protection agents seized Gerardo Serrano’s pickup truck in September 2015, there was no judge to oversee his case. There were no warrants or squabbling lawyers. In fact, Serrano was never even charged with a crime. He lost his truck because, when he crossed into Mexico at Eagle Pass, Texas, agents found five low-caliber bullets that Serrano had forgotten were in the vehicle’s center console.
Serrano was one of the lucky ones: He eventually got his truck back with the help of the libertarian Institute for Justice. But President Donald Trump wants to use the money the federal government made from auctioning off property it takes from people such as Serrano to pay for a border wall with Mexico. Trump’s position highlights a major problem with civil forfeiture: It tempts the government to steal from citizens for its own gain.
The agents could seize Serrano’s truck without any due process because of civil forfeiture, an absurd practice in which law enforcement seizes property from people suspected of a crime, even if they never charge the owners. The few proponents of civil forfeiture — generally those in the “hard on crime” crowd — contend this power is needed to fight crime and illicit drugs on the grounds that it can serve as a deterrent. Most reasonable people from across the ideological spectrum, however, call it what it is: government-sanctioned theft.
Much of the forfeitures at the federal level occur through agencies at the Justice Department, such as the FBI or Drug Enforcement Administration, and, therefore, end up in a fund controlled by the department. But other agencies, such as Customs and Border Protection and the IRS, send their forfeitures to a fund controlled by the Treasury Department.
It’s this fund at Treasury that Trump intends to tap to fund increased border security. The plan is to reprogram $600 million from the fund, as well as billions of dollars from other sources, to stave off an “invasion of our country,” as the president said Friday.
Trump’s imagined “invasion” is, of course, baloney. And so is the logic by which the government justifies seizing this property. Some of the forfeitures in that fund are, no doubt, legitimate takings from criminals. But it’s unclear how much of the money that Trump intends to use was squeezed out of people who were never charged with crimes. Why? Because, unlike the Justice Department, which has provided data from their forfeiture fund to the public, the Treasury Department won’t give up such information.
“All we have are anecdotes,” said Jennifer McDonald, a senior research analyst at the Institute for Justice. “Reasonably, a lot of people’s money is caught up in it.”
What we do know, however, is that the majority of federal forfeiture victims are never convicted or charged with a crime. One analysis based on Freedom of Information Act requests from the Institute for Justice found that 87 percent of forfeiture proceedings pursued by the Justice Department were civil, not criminal, cases. There’s no reason to think that Treasury’s fund is any different.
Consider, for example, the IRS, which has a nasty habit of seizing money from bank accounts without due process. The agency does so whenever someone deposits or withdraws money in such a way that makes them suspicious (for example, if a person makes a series of deposits slightly less than the limit of $10,000, appearing as if they are trying to launder money). But, in at least a third of such cases from 2005 to 2012, totaling $242 million in seizures, the IRS pursued no criminal charges.
Critics have already excoriated the president’s emergency declaration as undemocratic and authoritarian. They have a point, and his actions will likely get caught up in court, but Trump’s choice of wall funding spotlights a form of kleptocracy that was underway long before his election. We should be appalled by civil forfeiture, and not only when Trump tries to build a wall with the proceeds.
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