I know you're
already mad about various injustices, but when you read Sarah Stillman’s recent
New Yorker article, “Taken,” your blood will boil. It’s about
the laws and practices – developed over the last 15-20 years as part of the
"war on drugs" and the general encroachment of police-state tactics –
regarding what is called “civil forfeiture.” And it’s about a lot more than
that.
[Do you hear
the echoes in how suspicion of terrorism becomes terrorism itself? In how I don’t have to prove American citizens
Awlaki, father and son, are “terrorists” (whatever that is) before
drone-killing them, because my suspicion that they might be is good enough?
(We won’t even get into how suspicion=guilt regarding other little stuff, like,
oh, chemical weapons.) Do you see how years of putting up with pre-crime
tactics for the “war on drugs” has been training in compliance for the more
radical presumptive-guilt tactics of the “war on terror”? Constantly selling
“war”-inflected frameworks of legal exceptionalism, the state has used various
opportunistic bogeymen – “communists,” “drug dealers,” “pedophiles,” terrorists”
(Who cares about them?) – to lure citizens
into accepting a creeping radical authoritarianism. Preemptive forfeiture today, preemptive detention tomorrow too.]
The insidious
wrinkle in all this, which makes civil forfeiture not only creepily
authoritarian but also painfully, infuriatingly, predatory,
is that state and federal civil-forfeiture laws have allowed the police forces
and prosecutors who seize “suspicious” property to keep all of it, and, in many
cases, to use it any way they see fit, including personal perks and bonuses. As
Stillman points out, we’re talking everything from “Halloween costumes, Doo Dah
Parade decorations,…credit-card late fees, [and] poultry-festival supplies,” to
“a thousand-dollar donation to a Baptist congregation…. important to [the District Attorney’s]
reelection,“ to “a twenty-one-thousand-dollar drug-prevention beach party,” to “a
city marshal’s ten-thousand-dollar personal bonus” and another officer’s “total
of forty thousand dollars in bonuses.” Stillman reports: “In Hunt County, Texas, I
found officers scoring personal bonuses of up to twenty-six thousand dollars a
year, straight from the forfeiture fund. In Titus County, forfeiture pays the
assistant district attorney’s entire salary.” In other words, the real practice
of civil forfeiture has become a lucrative system of “policing for profit,” a
system that has literally legalized highway robbery and turned police into
pirates.
It’s important
to understand where this money is coming from. The cops and media like to
promote the idea that civil forfeiture is primarily a weapon against drug
“kingpins,” that most of the property seized is along the lines of Pablo Escobar’s
millions or the Ferraris that Crockett and Tubbs drove around
Miami. That idea is, well, a crock. Sure,
there has been some of that, and those glamor seizures are the ones most likely
to be publicized by prosecutors and police. But, like all predators, the
forfeiture cops target the easiest and the weakest prey. There are a number of
factors that encourage this. First of all, as the list of perks imply, the
juiciest catch is cash. Second, because there are legal procedures – very long
and very complicated legal procedures, to be sure – by which confiscated but
legal property and funds can be recuperated, the best targets are those who
seem least likely to be able to afford the lawyers and the time needed to
challenge a seizure. So it’s people who don’t have bank accounts or credit
cards or Amazon Prime, who have to tuck the cash they have saved – the few
hundred to buy those Christmas presents, or the couple of thousand to buy that
used car – into their purses or the consoles of their car, who offer the most
opportune targets.
Stillman
quotes Lee McGrath, of the Institute for Justice: “There’s this myth that
they’re cracking down on drug cartels and kingpins…In reality, it’s small
amounts, where people aren’t entitled to a public defender, and can’t afford a
lawyer, and the only rational response is to walk away from your property,
because of the infeasibility of getting your money back.” McGrath did a study
of $2.76 million in forfeitures taken by local, county, and state police forces
in Georgia, showing that “more than half the items taken were worth less than six hundred and fifty dollars.”
These stories don’t often make the news.
Home Depot
Let’s get
down to cases for a moment. A lot of this robbery does take place along the
highway, and we’ll get to that. But to
get a sense of how thoroughly pernicious and predatory is the practice of civil
forfeiture (and the “war on drugs” in which it is so tightly implicated), let’s
look Stillman’s report of what happened to the Adams family in Philadelphia. Sixty-eight-year-old
grandmother Mary Adams, and her seventy-year-old husband Leon, a pancreatic
cancer patient, had built their lives and raised their only son in the same
West Philadelphia home since 1966, working various unglamorous jobs like
steel-worker, janitor, Woolworth’s saleswoman, and patient care assistant. Mary
was a volunteer block captain who thought that seizing homes “was reserved for crack
houses and abandoned eyesores.” You know, honest, hard-working makers not
takers, and all that. Until one day, without any prior notice, a heavily-armed
SWAT team invaded their home, and announced: “We’ll give you ten minutes to get
your things and vacate the property.” This seventy-year-old man and sixty-eight-year-old
woman were to be thrown out on the street, and their home of 46 years was to be
sold at a city auction – with, as Stillman details, “the proceeds split between
the district attorney’s office and the police department.”
All of this
occurred because the Adams’s thirty-one year old son, Leon, Jr., had allegedly
sold twenty dollars’ worth of marijuana to a confidential informant on the
porch of their home. Because of this twenty-dollar crime, the Adams’s
home could be seized and sold, even if
Leon, Jr., was acquitted, and, in fact, even
before he stood trial. (In this case, the Adams’s caught a break – a
deferral, not a reprieve – when an eviction officer, on his own prerogative,
struck by Leon’s frail condition, allowed them to stay in the house until the
forfeiture proceedings were completed.)
It turns out
that “homes in Philadelphia are routinely seized (about a hundred a year) for
unproved minor drug crimes, often involving children or grandchildren who don’t
own the home.” Predictably, as Louis Rulli, the head of a free University
of Pennsylvania Law School clinic which works for indigent homeowners, told
Stillman, “For real-estate forfeitures, it’s overwhelmingly African-Americans
and Hispanics….It has a very disparate race and class impact.” To illustrate,
Rulli recounted how the son of the former Philadelphia Eagles’ coach had been
convicted of running what a judge and
the press called an “emporium of drugs” while living at the family’s suburban
mansion in 2007. Rulli asks, with appropriate agitation: “An emporium of
drugs!...And here’s the question: Do you think they seized it?” It’s a
rhetorical question.
So if you
don't know about piracy, and don't know anyone it's happened to, it may be
because its victims, I’m sure you’ll be shocked to learn, are largely poor
people who can't afford to fight it, and, more surprise, disproportionately
black and Hispanic. Relatively well-to-do white people don’t know any people
this has happened to for the same reason they don’t know any kids who are stopped-and-frisked.
Pirates of the Median
Speaking of
stopping and frisking, it’s on the highways that many police departments, often
in rural areas, have developed the fine art of civil forfeiture – stopping,
searching, and seizing vehicles and their contents in a finely coordinated and
highly lucrative routine. Here, again, it’s people who don’t have bank accounts
and have to carry cash to make their purchases who are the prime prey. It’s
also the small business owners rushing to grab that great cash-only deal on
used restaurant equipment they saw in the Pennysaver.
Take the
case, recounted by Chole Cockburn of the ACLU, of Shukree Simmons, an African-American
businessman, who was driving home with his partner and the $3,700 he had just
got from selling his Silverado for desperately-needed funds for their business.
They were stopped in Lamar County, Georgia, their vehicle was searched and
dog-sniffed, they were questioned separately, and, after finding no evidence of
any illegal activity, the cops confiscated his $3,700 “on the suspicion that
the funds were derived from illegal activity,” as authorized under Georgia’s
civil-forfeiture law.
Stillman’s New Yorker article (like this earlier article by Howard Witt in the Chicago Tribune and this by Janell Ross at the Huffington Post) focuses on the tiny (pop. 1160) town of Tenaha,
Texas, where, as the ACLU’s successful lawsuit described, local police and
prosecutors "developed an illegal 'stop and seize' practice of targeting,
stopping, detaining, searching and often seizing property from apparently
non-white citizens and those traveling with non-white citizens." From 2006 to 2008, the “Tenaha operation,” as
it was known, on pretexts like “driving too close to the white line,” stopped,
searched and seized the cash and valuables of as many as
1,000 black and Latino drivers.
One of the
incidents that precipitated the ACLU lawsuit was the stop of Jennifer
Boatright, a waitress and self-described “Texas redneck from Lubbock,” who
was driving with her Latino boyfriend, Ron Henderson, and her two
young sons, along with the $6,000 they were going to use to buy a used car. The
district attorney, Lynda K. Russell, told them they faced felony charges of
“money laundering” and “child endangerment,” and “threatened to turn their
children, ages 10 and 1, over to Child Protective Services if the couple didn't
agree to sign over their right to their cash.” The policy was: “If a driver
opted for an arrest and a chance to see a judge, any children in
the car would be turned over to child protective services. Jennifer’s Freedom of Choice. As
Boatright put it to Stillman: “Where are we?…Is this some kind of foreign
country, where they’re selling people’s kids off?” (It was "State of Texas v.
$6,037.” Boatright made the choice any parent would have, but ultimately did, as
a result of the class-action suit, get her money back.)
Of course, we
can believe Tenaha’s mayor George Bowers’s insistence that "We're not
doing this to raise money.” Nooo, they’re just so concerned about evil
drugs and children’s welfare that they’ll let the suspected child-endangering
money launderers drive off with the kids for six grand. The fact that tiny Tenaha made
$1.3 million in six months, with a “profit-sharing agreement…to split the
proceeds among the district attorney’s office, the Tenaha marshal’s office, and
the county constable,” was, cross his heart, not the reason they were doing this.
And Shelby
County judge Rick Campbell is credible as well as sincere in insisting, “In my
heart of hearts, I really do not believe that there was any kind of profiling
going on.” After all it was, yes it was,
a black former state trooper (“among the most decorated officers in state
history”), Barry Washington, who came to Tenaha in 2006, and sold the mayor and
city marshal on the idea that “his drug-interdiction skills could be put to
good use along its section of Highway 59.” Because there are no black cops
opportunistic enough to play the profiling game for their own benefit. (It was
Washington who received $40,000 in bonuses.)
Really, it wasn’t that he figured out a way to use the law to his own
profit; it was a mission from God: “His explanation was simple. He’d been lying
in bed one night in Carthage, soon after leaving his old job, when he looked up
to see a light burst through his bedroom ceiling. ‘And it’s like I’m in a
trance,’ he later recalled. ‘And God tells me, ‘Go to Tenaha, Texas.’ And I get
up the next day, and I laugh about it, until I find out that God may be
serious, so I end up in Tenaha.’” So it just can’t be racial profiling.
As a result
of the ACLU lawsuit, Tenaha city and county officials paid $600,000 in legal
fees, agreed to record all traffic stops, and accepted court-appointed monitoring
of seizures, but they also denied any wrongdoing. Even Texas state Sen. John
Whitmire had to acknowledge, however, that "[I]n this instance, where
people are being pulled over and their property is taken with no charges filed
and no convictions, I think that's theft."
And Tenaha was only one example of a lager pattern of civil-forfeiture
piracy throughout the county.
Seeing is
believing, and all, so please take a look at this eight-minute excerpt (my
rough edit) from a multi-part report on a local Tennessee TV station a couple
of years ago, detailing how a big-business version of this practice, involving
large-sum seizures, plays out. In it, we see how little interest the cops and
prosecutors have in actually catching drug dealers rather than collecting cash,
and how the war on drugs has become a thin excuse for highway robbery (not a
rhetorical characterization):
Similar
incidents occurred in the Tenaha case, where, for example, a local councilwoman
noticed that a woman who appeared to be a major money launderer – she had
$620,000 hidden in Christmas-wrapped “children’s toys” – was quickly released with
no criminal charges after she signed away the cash.
[Watch the
original 3-part series at: part 1, part 2, part 3. You’ll see the turf wars, where the
cops/gangs from different agencies block each other off to protect their
stretch of highway, and you’ll see another businessman who had $22,000
confiscated (“If somebody told me this happened to them, I wouldn’t believe
it.”). The best part is watching the
cops and the D.A. sputtering to explain and justify all this as concern for
stopping the horrible scourge of drugs. It would be funny if it weren’t
infuriating.]
Here’s
another brief example (1:40. my rough edit, again), from last year in Union
City, Georgia, of less the lucrative, but all the more devastating, seizure of
a woman’s life savings, during a traffic stop in town. It’s remarkable how,
although this happens all over the country, all the time, the local
newscasters, and even the lawyer, are amazed and “appalled” that the police are
able to seize people’s money without charging them with a crime:
The Social Sea
The “I can’t
believe this can happen here!” response is a sign of how this practice is
selectively targeted by race, class, and area, to keep it off the radar of the
media and “middle class.” While the underlying legal theory that property does
not have the rights of a person is not unreasonable, the effects of seizing
the little property that those off-the-radar millions depend on to survive is
devastating. It amounts to a kind of preemptive immiseration, another way to take
from the poor, and drive them further into social hardship. The police and
prosecutors here are not taking drug kingpins’ Ferraris, they’re taking the
cars people need to get to work, and their life savings. Adding insult to the
injury, the assets seized can only go to the police, contributing nothing to
society except further strengthening the primary institution of repression and
social control.
It’s
important to note that this practice is not some aberration of greedy policemen.
It’s an inevitable and integral aspect of the encroaching neo-liberal – i.e.,
nakedly capitalist – social economy. The new piratic highwaymen are the effect,
not the cause, of that social economy. These practices and these people are
more products of the widespread defunding of the public sphere, the new mandate
to replace consistent and adequate public funding of public services with
discrete, sporadic, private and private-ish entrepreneurial projects. Public
institutions are being reconfigured as isolated interests, and being told to grab what you can from wherever deep or
shallow pockets you can figure out how to access. Sarah Stillman points out just how this civil
forfeiture practice fits in with the thirty-year drive to defund public services:
“The strategy helped reconcile President Reagan’s call for government action in
fighting crime with his call to reduce public spending.”
Somehow,
Reagan’s Attorney General, Richard Thornburgh, didn’t notice (Do we?) the daisy
chain of corruption he was describing, when he exclaimed, with
near-orgasmic glee: “It’s now possible for a drug dealer to serve time in a
forfeiture-financed prison after being arrested by agents driving a
forfeiture-provided automobile while working in a forfeiture-funded sting
operation.” Gee, what would we do without that drug dealer?
This whole
civil forfeiture scam, then, is a version of – particularly perverse, perhaps,
but profoundly of a piece with – teachers and parents holding a bake sale to
buy school supplies. In other words, as
the officer acknowledges in the video above, this is now the way salaries and equipment purchases –the fundaments of
public institutions – are funded. He’s seconded by Steve Westbrook,
executive director of the Texas Sheriffs’ Association, who told Sarah Stillman:
“We all know the way things are right now—budgets are tight...It’s definitely a
valuable asset to law enforcement, for purchasing equipment and getting things
you normally wouldn’t be able to get.” And Howard Witt cites “a prominent state
legislator” to the effect that “police agencies across Texas are wielding the
asset-forfeiture law more aggressively to supplement their shrinking operating
budgets.” According to Stillman, “Many officers contend that their departments
would collapse if the practice were too heavily regulated.”
There’s no
question that the revenue from this practice has become significant. According
to Stillman, the Justice Department calculates that proceeds from forfeiture
went from twenty-seven million dollars in 1985 to $4.2 billion in 2012, an increase she aptly characterizes as
“staggering.” There’s a heavy dose of self-interested exaggeration in these
pleadings by the police. A lot of the loot goes into unnecessary equipment,
and, as we’ve seen, extraordinary personal perks and bonuses. As Stillman
notes, this is especially the case in states like Texas, Georgia, and Virginia,
which do not much regulate how police can use confiscated assets, whereas
“states that place seized funds in a neutral account, like Maine, Missouri (where
proceeds go to a public education fund), North Dakota, and Vermont, have
generally avoided major forfeiture-abuse scandals.” A public education fund! Bravo, Missouri. I
do suspect that if seized assets were put in a monitored and regulated public
fund, to be used for social purposes beyond the enrichment of local police
forces, there would be less of the aggressively predatory behavior we see now.
Simon Porter,
a former East Texas narcotics cop hit it exactly, when he told Stillman: “When
you allow the profit incentive, that’s when you start getting problems…It’s
like the difference between serving in the Army and working for Blackwater.”
It is just
like that. It’s astounding how virtually every public service job has become,
if you’re smart, nothing but a prelude, a purgatory really, that one passes
through to get to the real heaven of private enrichment. Grunt soldiers spend a
few years in the public army as training for the Blackwater job that will pay
them ten times as much. High-level officers are preparing for the lucrative
defense contractors’ Boards. Intelligence officers use the CIA and NSA for
springboards to Stratfor and such. Congressmen prepare for the
seven-figure lobbying jobs they know they await them if they vote the right way
for a few years. Presidents get their
seven-figure book deals, and know that six-figure speaking fees and
eight-figure wealth await them if they listen to the right people. Public
service for the sake of, you know, serving the public, actually living through
a career remunerated by a public wage and pension – that’s for suckers, a relic
of the days (even before Crockett and Tubbs) when airbases around the world
were built and maintained by actual soldiers and sailors, the Seabees, not Halliburton.
This is the
privatized neo-liberal world in which cops, too, are suckers if they don’t take
the opportunity to become privateers.
I know a
number of people who work in film and TV production. I hear the stories. There was the time a small crew was filming,
with a permit, in the central square of a Mexican city, and the local police
showed up, demanding a handout. Or, in Africa, where bribes were demanded to
enter buildings and monuments that were ostensibly open to the public. In such
places, people will give up what are, in the context, well-paying legitimate jobs
to take a “public-sector” job that carries a significantly lower wage, but
allows them to milk the public for ten times as much in bribes.
I think of
these scenarios in contrast to the following story: One night, when my wife and
I were exiting a garage in Manhattan, both carrying packages, a ring was
dislodged from her finger, and we watched, in one of those slo-mo trances, as
it rolled into the storm drain. Its value
was certainly more sentimental than monetary, but she loved it. The next day,
we tried to see if we could fetch it ourselves, but storm drains, it turns out,
are very deep and murky. So, not
hoping for much, we called the New York City Sanitation Department to see if
anything could be done. We found, to our surprise, that they had guys in trucks
whose job it was to help with our problem.
The following day, the guy showed up, on time, dug out the storm drain grating,
and, with this huge vacuum hose, started pulling out the muck from the bottom
of the storm drain, a few buckets’ worth at a time. He spent at least a half-hour, patiently
going through sludge with us, in what – as we feared, and he surely expected – would
be a vain endeavor. I was assuming that his patience and helpfulness was in
expectation of a tip. I imagined the gratitude of someone for whom he had
retrieved some enormously valuable jewelry, and thought that, surely, this guy
was working a job that was coveted for that kind of potential reward. And he
had worked hard for us, and we were very grateful. But, when we offered a tip,
he adamantly refused. I mean repeatedly and adamantly (to our surprise, and to
the astonishment of the garage attendant, who was looking on throughout). This
is my job, he said, I cannot take a tip for doing it.
My point: If
you want to guarantee that there will
be endemic civic corruption, give public workers, from sanitation workers to
cops to judges, crappy pay, lousy working conditions and no benefits, and they
will inevitably use whatever modicum of power given to them by their badge or
position in a bureaucracy to shakedown the public in any way they can get away
with. (And that will be a lot of ways. When you’re got an indigent
public-sphere at a third-world level, the corruption won’t stop at the police,
and will include the judges.) That’s the culture of baksheesh.
Now you’re
not going to eliminate corruption entirely, and I’m under no illusion that all
NYC employees always act like the aforementioned sanitation worker. But, if you want to minimize the corruption of public employees – especially the ubiquitous,
constant holdups that plague everyday life in many places – then provide them
with good, secure jobs that come with real benefits and decent pensions they
can count on. See that public employees have the kinds of jobs that will not
require them to live on tips and bribes, the kind of jobs they will be loath to
put at risk for the odd Benjamin.
The latter
are the kinds of jobs that, over thirty-five post-WWII years in this country,
were fought for, won, and protected by public-sector unions just like Local 831
of the Teamsters (the Uniformed
Sanitationmen's Association). These jobs were based on a worker- and
union-friendly politics and ideology on the local and national levels, which at
least some important sectors of the political caste and, more importantly, the
mass of workers themselves, were committed to keeping strong. This is the
social framework in which you don’t always have to pay someone off to look for
your lost property, or get a passport. Unfortunately, for the past thirty
years, that social, ideological, and political paradigm has been relentlessly
attacked and deeply degraded, not least of all by workers’ ostensible political
representatives. Which is, guaranteed, going to mean an increase in public
corruption, from the traffic stop to the courtroom. Welcome to the third world.
Of course,
under any circumstances, the propensity for public, especially police and
judicial, corruption will be exacerbated when you attempt wholesale
prohibitions that are impossible really to enforce and engender widespread
black markets awash with huge piles of cash, making for irresistible
temptations. As in my third story, of the NYPD detective I knew, who once
served as a leader of a large interagency drug task force. He told me how,
after they had taken down a real “kingpin” operation, he watched the faces of
the cops who had been working under his command when they saw the confidential
informant, who had helped them in the case, walk out of his office with a bag
stuffed with $70,000 or so in cash – the CI’s cut (yes, that happens), which
was (at the time) more than most of those cops were making in a year. The
detective was telling me this two years after, as he was preparing to testify
to a corruption inquiry against those same cops, who had decided it was time to
get theirs, and had taken to jacking drugs from dealers and forcing their CI to
sell the drugs for them.
What we see
in civil forfeiture practices is essentially the legalization and normalization
of such corruption. We see the potent combination of the defunding of the
public sphere with the maintenance of an inevitably criminogenic, corrupting
prohibition. We see a trafficking in banned substances that is at once
demonized, and at the same time carefully maintained, through its prohibition, as a
substitute funding source for public institutions. Should we be surprised?
The Tennessee highway patrol is using the cocaine trade to finance their
salaries and SUVs in the same way the CIA used it to finance the contras and
other off-the-shelf operations.1 When you have such profitable
entrepreneurial schemes, who needs taxes?
Welcome to
the third world, American-style.
Update (9/17/2013 5:53 PM): Fixed video play problem. (Both videos were playing in both places.)
Update (9/17/2013 5:53 PM): Fixed video play problem. (Both videos were playing in both places.)
Notes
1Honor to the late, great Gary Webb,
about whom, if you don’t know, you really should – before the movie comes out, and we decide whether
Jeremy Renner and Michael Cuesta are among the good guys. Robert Parry has been
Webb’s most consistent advocate. Start with Parry’s post here, and go through the links.
Update (6/4/2014): I'm reposting this great graphic I received from arrestrecords.com:
Update (6/4/2014): I'm reposting this great graphic I received from arrestrecords.com:
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