Rebecca Furdek
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“I’ve always paid my taxes and have never been arrested or charged with any crime in my life. I am a successful small-business man. But in January of this year, I woke up to find that my business’ entire bank account — more than $35,000 — had been wrongly seized.”

These are the words of Terry Dehko, who since 1978 has owned Schott’s Supermarket in Fraser, Michigan. His daughter, Sandy, began working with her dad at the store when she was 12, and now helps him run the business. Last year, the IRS conducted an audit of the store, and on January 22nd of this year, Terry woke up to his entire bank account – $35,000 – suddenly vanished. While the money disappeared, Terry was never charged with a crime.

The Institute for Justice, after taking Terry’s case and threatening to file another suit in Michigan against the federal government, recently scored a victory for innocent property owners such as Terry. The IRS quietly retreated, and Schott’s Supermarket is as thriving as ever.

But justice for Terry Dehko does not mean justice for all similarly harmed Americans, or to the reputation of law enforcement itself. And why did this happen to Terry in the first place?

It’s a regime called civil forfeiture, and it could happen to you.

In civil forfeiture, government doesn’t even accuse people – but rather “stuff” such as real property, cash, and cars - of being guilty of a crime. This perverse practice often is used for eyebrow-raising lavish perks for local law enforcement agencies. More seriously, it severely undercuts the historical assumption in American jurisprudence of “innocent until proven guilty.” Civil forfeiture is a prime example of an unjust imbalance of state power against individuals, and through such, harms the overall credibility of law enforcement.

Civil asset forfeiture is a decades-old regime, instated during the Reagan Administration through the Comprehensive Crime Control Act of 1984 as a way to bolster the then-new war on drugs. Law enforcement, through this regime, can seize one’s cash, car, or even home on suspicion of the property being associated of a crime, without ever charging the corresponding owner.

And it’s growing. Last year, the Department of Justice seized over $4 billion in assets, a far cry from the mere $27 million obtained at the outset of the program in 1985. These funds are used directly for forfeiture-related expenses and, far more broadly, for other general law enforcement purposes.

On a certain level, the regime’s rationale may sound viable. Proponents note that the practice enables law enforcement to confiscate cash or property and funnel the proceeds directly into their efforts. For instance, police in Tulsa, Oklahoma, bolster their “tough on crime” reputation by driving a Cadillac Escalade triumphantly stenciled, “THIS USED TO BE A DRUG DEALER’S CAR, NOW IT’S OURS!”

However, it’s not that rosy.

First, because one need not be even be charged with a crime (let alone be found guilty) before forfeiture occurs, this turns the long-held American doctrine of “innocent until proven guilty” on its head. Studies have shown that a mindboggling 80 percent of such impacted individuals are, indeed, never charged with a crime.

The protections our Constitutional usually affords are out the window,” rightfully concludes Louis Rulli, a University of Pennsylvania law professor and national forfeiture expert. Unlike in criminal forfeiture, in which a person must be first convicted before property is confiscated, civil forfeiture requires an individual to come into court and bear the burden of proving that his or her “stuff” is not guilty. The presumption of innocence is nowhere to be found. And litigating is not cheap, so very few property owners, and almost zero low-income individuals, even attempt to regain their forfeited property.

Examples abound of proceeds not faithfully funneled into any semblance of meaningful police work. For instance, the DA’s office in Fulton County, Georgia, recently celebrated forfeiture profiteering with $5,600 on a Christmas party, $1,100 on flowers, and $3,200 on “sirloin beef tip roast, roasted turkey breast and mini crab cakes with champagne sauce.” Police in Pittsburgh used the proceeds for almost $10,000 worth of Gatorade. The Milwaukee County Sheriff’s Office recently used forfeiture to purchase nine flat-screen TVs for $8,200.

All of this clearly detriments the property owners, but also has a dangerous effect on law enforcement.

The government acknowledges that factors which build a positive public image of the police include solving problems in communities and helping victims and social cohesion marked by informal police contacts. A doctrine in which the government arrives at doors and kicks people out of their homes, takes modest to large amounts of cash, or impounds cars without ever charging the property owners with a crime does nothing to foster trust. Add this with the rising militarization of the police, especially in the past decade, and our nation is left facing a police force that is a far cry from fostering voluntary “social cohesion.”

Because of the growth of the forfeiture regime, and the resulting increased awareness of this absurd regime in recent years, there is far more than dollars at stake. Morale is on the line. Credibility is on the line. The doctrine of innocent until proven guilty, and the resulting long-held public assurance of this being the rightful relationship of the state to individuals, is on the line. And if law enforcement truly values these dire social and philosophical concerns, they will not forfeit their own credibility for the mere sake of profit.

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Rebecca Furdek

Rebecca Furdek is a Young Voices Advocate and a law clerk at the Institute for Justice.