© 2011, Forfeiture Endangers American Rights Foundation

The Sheriff of Nottingham Syndrome    by Judy Osburn

Louis Rhead's Sheriff of NottinghamWhether the legends of Robin Hood come to us as a composite of popular English heroes, or the character who fights oppression and injustice arises from pure myth, the central villains of Robin Hood fame existed in real life, and their infamy changed the course of history.

The sinister Prince John of Robin Hood legend became King John in 1199.  His reign became so oppressive that his kingdom nearly erupted into full scale civil war.  In 1215 the barons of England forced King John to put his seal on the Magna Carta—the first time history that an English king became subject to the laws of his kingdom.  

However, early stories of Robin Hood refer to the principal villain not by name, but simply as “the Sheriff of Nottingham.”  The sheriff's office and his position as corrupt local authority are central to the Robin Hood legend.  The Sheriff of Nottingham is likely a composite of many accounts of abusive sheriffs of the period.

A few examples of present day Sheriff of Nottingham syndrome are encapsulated below. But first, a short historical background highlights the centuries old problems of policing for profit:

Under the Magna Carta, for the first time in English history, the king, just like anyone else, became subject to the law of the land.

As part of his agreement in signing the Magna Carta, King John promised to return forfeited lands after a year and a day. The Crown also renounced any claim to forfeiture on the ground of felony. In order to prevent King John from personally ordering the arrest and punishment of a free man without lawful judgment, Chapter 39 of the Magna Carta provides:

“No free man shall be arrested or imprisoned or disseised [property taken] or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.”

According to the Magna Carta, "lawful judgment" could only be made by judges according to "the law of the land," or by one's peers in a trial by combat. For the first time in English history the law was above the king's will —  a revolutionary idea some 800 years ago, which became the foundation of English law, and source of many of principles of law in the U.S. Constitution and Bill of Rights.

The Sheriff of Nottingham

The Sheriff's word was law across Nottinghamshire during the legendary time of Robin Hood. Sheriffs throughout England were appointed, but not paid, by the king. The annual fee that each sheriff had to pay the king to keep his office was called the "farm" of the county.  The sheriffs usually made far more than the crown asked for by collecting taxes and seizing property from anybody who they cared to label “outlaw.”  In 1204, King John said the sheriffs weren't expected to keep any of the county's revenue. That mattered little because the sheriffs didn't report all of their income, especially from such sources as being bribed to look the other way, arranging false arrests, roadside search and seizures, and so on.

In 1170 Henry II led an inquest to make the sheriffs a group of professional administrators. King John held a corruption inquiry in 1213, and tales of corrupt sheriffs continued for centuries. Robin Hood historians say that perhaps tales of many corrupt sheriffs combined to make the nameless adversary of Robin Hood.

Just as the Sherriff of Nottingham's system of policing for profit was open to much abuse, modern accounts of corruptoin fueled by police agencies' ever increasing dependence on forfeiture revenue abound accross the nation.

Today’s asset forfeiture laws allow law enforcement agencies to seize and keep citizens’ private property, including real estate, vehicles and currency, based upon an allegation of a connection to illegal conduct.  Although the laws dictating who will receive the proceeds vary from state to state, even in the most restrictive states police departments can receive up to 80 percent of the proceeds they seize by working with the federal government in a process called equitable sharing.

Sociologists Mitchell J. Miller and Lance Selva completed the first empirical examination of asset forfeiture in 1994. As part of their study, Drug Enforcement's Double Edged Sword: An Assessment of Asset Forfeiture Programs, one of the authors assumed the role of confidential informant in undercover narcotics operations in a southern state during their 12 month empirical examination of the implementation of laws from within the forfeiture program. Their findings “suggest asset forfeiture is a dysfunctional policy. Forfeiture programs, while serving to generate income, prompt drug enforcement to serve functions that are inherently contradictory and often at odds with the demands of justice." Drug Enforcement's Double Edged Sword: An Assessment of Asset Forfeiture Programs.

Police pirates’ ever-increasing reliance on seizing plunder for their agencies results in a perversion of law enforcement priorities. Miller and Selva documented these skewed priorities even to the point where police routinely allow the distribution of illicit drugs so that they can seize and keep cash instead of confiscating contraband that must be destroyed.

Law Professors Eirc Blumenson and Eva Nilsen explored the transformation of our criminal justice system caused by asset forfeiture incentives in their 1997 legal and empirical analysis, Policing For Profit: The Drug War’s Hidden Economic Agenda, published in University of Chicago Law Review.  They found that lucrative rewards available to police and prosecutorial agencies have made drug law enforcement their highest priority, “to the point where the imperatives of drug law enforcement now drive many of the broader legislative, law enforcement, and corrections policies in counterproductive ways. … One significant impetus for this transformation has been the enactment of forfeiture laws which allow law enforcement agencies to keep the lion's share of the drug-related assets they seize. …T]hese financial incentives have left many law enforcement agencies dependent on drug law enforcement to meet their budgetary requirements, at the expense of alternative goals such as the investigation and prosecution of non-drug crimes, crime prevention strategies, and drug education and treatment.” They concluded:

Together with the narrow drug enforcement focus of the revised federal law enforcement aid program, the asset retention law has wrought a dramatic shift in police motivation, towards practices which seriously undermine rational law enforcement efforts. As we have seen, many police agencies choose law enforcement strategies that can take fullest advantage of federal forfeiture laws, circumvent their own state forfeiture laws, and maximize property seizures, reducing fairness and crime control issues to an afterthought. Even the alleged mission of the Drug War may become secondary; failed policies are immune to reform because they sustain and profit the law enforcement agencies enlisted in this war.

Police abuses and warped law enforcement policy are only one half of this disturbing story. We have also argued that police self-financing raises serious accountability concerns, and threatens to establish a sector of permanent, independent and self-aggrandizing police forces. This might sound promising to Colonel North or General Pinochet, but it should not be mistaken for a legitimate organ in a democracy.

Blumenson and Nilsen’s “Policing for Profit” study also addressed “accountability objections to self-financing police agencies”:

Agencies that can finance themselves through asset seizures need not justify their activities through any regular budgetary process. As a Justice Department report notes, "one 'big bust' can provide a task force with the resources to become financially independent. Once financially independent, a task force can choose to operate without Federal or state assistance."

When this happens, the predictable consequence is a degree of police secrecy and independence that brings with it some of the risks civil libertarians associate with the term "police state."

Blumenson and Nilsen found that it is increasingly apparent that multijurisdictional task forces (created as part of the equitable sharing of federal forfeiture proceeds with local law enforcement agencies that participate in forfeiture producing investigations and arrests) are plagued by problems of corruption.

One example came to light in 1996, when almost $66,000 was discovered secreted in the former headquarters of the Western Area Narcotics Task Force (WANT) in Paducah, Kentucky. An inquiry followed to determine where the money came from and figure out what to do with it. Investigators learned that the task force had seized large amounts of money which it then used for whatever purposes it wished, unconstrained by audits, reporting requirements or its mission. This problem is endemic to forfeiture beneficiaries, from the Justice Department on down.

The investigation has shed light on the routine operations of this task force, and probably many others as well. Both seizures and expenditures were largely lawless. Like other task forces, WANT made asset seizures a priority, and mandated expected forfeiture growth rates. But WANT met its quotas with much more zeal than care. The police chief estimated that 60% of the money found in WANT headquarters will be returned to the owners because it was not properly seized. Often the seizures had no nexus to any drug transaction. Arrests were delayed for as long as weeks and months, at which point the police took whatever they found on or near the defendant at the time -- even though there was no connection between the seized property and the now distant drug transaction for which they were being arrested. Some seizures were as small as eight cents. Another seizure of 93 cents showed "once again that the officers were taking whatever the suspects were carrying, even though by no stretch could pocket change . . . be construed to be drug money."

The subsequent handling of seized assets was equally lawless. WANT refused to deposit money into a special account through the city's Finance Department. It maintained no system to record seizures, identify particular assets seized with its owner, or indicate whether it had been forfeited. Kentucky's asset distribution formula was disregarded, and cash was retained by the task force in vaults, boxes, bags, lockers and envelopes. One can only speculate on how the money was used, but earlier reports had criticized WANT for improperly diverting its grant money to investigate non-drug activity and cover cost overruns, and diverting personnel and equipment to surveil elected officials and private citizens for what looked like vindictive reasons.

The discovery of secreted cash provoked a major media scandal in Kentucky, but despite the predictions of some task force members that WANT's history would mark it for termination, WANT survived, changed its name, and prospered.

The Policing for Profit investigative team concluded: "When Congress fundamentally restructured the forfeiture laws by allowing agencies to keep most of the assets they seize, it did so without considering the very substantial costs of these amendments to both the public welfare and the justice system."
Another study completed in 2008 by University of Texas criminologists John Worrall and Tom Kovandzic also examines the perversion of law enforcement priorities, goals and actions of police agencies that increasingly depend on seizing assets to finance their departments. In Is Policing for Profit? Answers from Asset Forfeiture, published in Criminology and Public Policy, the two criminology professors analyzed 572 police departments around the country to look at the big picture of how asset forfeiture laws might influence policing.  Their data came from the Law Enforcement Management and Administrative Statistics survey and the U.S. Justice Department Asset Forfeiture Program.  While Worrall and Kovandzic conclude their “study lends a measure of support to the arguments espoused by forfeiture's critics,” these two researchers find it “difficult to fault financially strapped public agencies for seeking needed resources.”

According to the U.T. Dallas education department, “Worrall and Kovandzic found that money does matter,” and that “policing for profit does exist and is an increasing occurrence.”

These findings are timely as rising gas prices and a changing economy leave police departments faced with growing budget constraints.  “As agencies become more desperate, there’s the potential for the situation to worsen.  We could see a lot more interest in creative sources of funding,” said Worrall.

A few examples of recent creative asset forfeiture schemes:

Like the Sheriff of Nottingham, the word of police became law across Bradenton.

We have recently seen a frightening increase the use of so-called forfeiture “agreements” whereby police completely bypass any judicial oversight. Until recently, for years police in Bradenton, Florida, police frightened citizens into signing so-called “forfeiture agreements” that waive all rights to contest the forfeiture of whatever currency police discover during a road side stop.

Bradenton’s Herald-Tribune examined the City’s forfeiture agreement program and “found cases in which police took money from people who were arrested on crimes other than drug charges, or who were not arrested at all. Several people said they did not know what they were signing.”

A Florida Court ordered the City of Bradenton to either return $10,020 seized in 2006 from Delane Johnson pursuant to such an “agreement,” or to properly pursue a forfeiture proceeding through the courts. Police had no evidence that Johnson was a drug dealer, thief, or had committed any crime whatsoever. But, suspicious of a black man in possession of a large amount of cash, and very desirous of that money, Bradenton police arrested Johnson on an obscure misdemeanor charge: failing to report a business transaction that exceeds $10,000. Prosecutors refused to file the bogus charge. But while police still had Johnson in custody with no lawyer, they got him to sign a form giving them that $10,020.

Attorney Varinia Van Ness took Johnson’s case to court. Judge Peter Dubensky called the City's use of the contract form "unconscionable" and said it used false pretenses to trick Johnson into a senseless agreement. The city had no basis for even seeking forfeiture, the judge wrote, and "should have known its defense was frivolous." In addition to ordering return of the money, Judge Dubensky ordered the City to pay attorney Van Ness’ fees in the amount of $7,490.

The City of Bradenton appealed.  A Florida appellate court vacated the judgment, based upon its finding that Johnson’s writ of mandamus was not an appropriate legal avenue for return of the money, nor to determine whether the City had a right to use forfeiture contracts generally. But the appeals court invited Johnson to return to the lower court to continue his fight for due process and justice. 

Seeing the futility of continuing its frivolous defense on remand back at the lower court, the City pulled off its final underhanded blow in the case.  The Bradenton police chief declared a “complete victory” regarding the appeals court reversal of Judge Dubensky’s court order to return the cash and pay attorney fees. But the City then suddenly returned Johnson’s money plus interest to him—and thus avoided paying attorney Van Ness’s  initial court ordered fees of $7,490 plus her  fees and costs incurred litigating the City’s appeal. (See: Herald Tribune, “Lawyer gets ‘paid’ for fighting Bradenton.” ) 

The original court order for return of money plus attorney fees, holding Bradenton’s use of strong arm forfeiture agreements to be an unconstitutional violation of due process remains vacated.
Just as the sheriffs of old England, the Muncie-Delaware County Drug Task Force didn't report all of their income from assets funneled through confidential agreements.

In Indiana the Muncie-Delaware County Drug Task Force (DTF) used numerous confidential agreements between the DTF and accused drug dealers to bypass local courts and state law requiring that proceeds of forfeitures be placed in the state’s general fund.  The DTF routinely funneled seized money and property through confidential agreements into DTF accounts in violation of state law. Some of those agreements were never approved by court order, and rarely detailed the cost of law enforcement and prosecution, on which the forfeiture assets are required to be spent.

In addition to these secret agreements to exclude judicial oversight and statutory requirements for the disposition of seized assets, in examining cases over the past decade Delaware Circuit Court 2 Judge Richard Dailey found 140 “abandoned property” affidavits, executed by Muncie police in charge of their property room or DTF officers, to distribute money and property seized from alleged drug dealers.

Judge Dailey found instances where property was declared abandoned while the property owners were engaged in forfeiture litigation. Dailey wrote in a 16-page report (PDF copy here) on civil drug forfeiture cases that he determined that prosecutors’ “handling of civil drug forfeitures amounts to fraud on the court. 

Most shocking of all are the secret agreements between prosecutors and police agencies. According to Judge Dailey, “These secret agreements, covering a period from 2000 to 2007, were intentionally drawn to avoid court supervision and adjudication of forfeitures as required by state law. This concealment was successful until uncovered by the court in 2008, following up on a chance comment by a DTF supervisor. The secret agreements show McKinney's and Hoffman's clear intent to profit from their special positions as public servants invested with a public trust.” 

Fraud on the court is defined in Black's Law Dictionary as "a lawyer's ... misconduct so serious that it undermines or is intended to undermine the integrity of the [judicial] proceeding." The secret agreements uncovered by the court, with their universal provisions to forebear filing of forfeiture actions or to dismiss existing forfeiture actions, constitute an egregious lack of candor with the court, and candor is necessary to preserve the integrity of the adjudicative process. These secret agreements, covering a period from 2000 to 2007, were intentionally drawn to avoid court supervision and adjudication of forfeitures as required by state law. This concealment was successful until uncovered by the court in 2008, following up on a chance comment by a DTF supervisor. The secret agreements show McKinney's and Hoffman's clear intent to profit from their special positions as public servants invested with a public trust. Invariably, while avoiding mention of attorney fees, the public money is directed away from general fund accounts into DTF accounts, from which McKinney's and Hoffman's 25% claims are paid.

 … The court notes McKinney drafted a court order seizing a credit union account. McKinney then negotiated and signed a secret agreement which was used to transfer money from the credit union account without the court's knowledge and in direct violation of the court order. The forfeited funds were transferred to a DTF account not authorized by the legislature for receipt of forfeited assets for local units of government and without any itemization or accounting for local law enforcement costs.

McKinney's actions are purposeful, deceitful, and directly against the interests of his clients, the Muncie Common Council and the Delaware County Council. He knowingly and willfully violated a court order and sought to conceal this action from the court. By his actions, McKinney intentionally subverted the check and balance system established by the Indiana General Assembly in civil drug forfeitures, substituting his judgment for that of the court as well as the fiscal bodies of Muncie and Delaware County.

The court notes that in the civil drug forfeitures which McKinney allowed to come to default or agreed judgment, he universally makes a statement which is untrue, which is either known by him to be untrue, or made by him with reckless disregard for the truth: the accounts he labeled general fund accounts and advised the court to place forfeited money into were not general fund accounts. …

… The court notes that McKinney's conduct in civil forfeitures and companion criminal cases gives rise to an inference of conflict of interest. A deputy prosecutor prosecuting a criminal action, while also proceeding with a civil forfeiture involving the same defendant, raises serious questions involving financial interest and whether it results in conveying the impression that justice is for sale. …

… McKinney was ready and willing to use the legitimacy and authority of the judicial system in pursuit of civil drug forfeitures, but he was unwilling to submit his actions to judicial scrutiny. His actions, considered jointly or severally, constitute a fraud on the court.

(PDF copy of Judge Dailey’s full report here.)

Some of the many cases examined by Judge Dailey are also part of a professional misconduct complaint filed by Muncie Mayor Sharon McShurley against McKinney, accusing him of misleading local courts handling those cases. She also claims the city never received reimbursement for law enforcement expenses through seizure of assets.

Our modern Sheriff of Nottingham syndrome — “inquest” and “corruption inquiry” from on high:

Due to the diligent investigation by Judge Dailey, the Indiana Supreme Court Disciplinary Commission launched an ongoing probe of allegations against Delaware County Prosecutor Mark McKinney.  The Disciplinary Commission is investigating as many as 35 drug forfeiture cases and companion criminal cases.

The cases reviewed by the Indiana Supreme Court were those in which McKinney was a full-time prosecutor, while also working as a private attorney signed representing the DTF in civil forfeiture cases.  The Disciplinary Commission will examine these cases for the conflict of interests between having power as a public officer to criminally prosecute while simultaneously standing to personally benefit from the proceeds of the related civil case.

The conflict of interest when a public prosecutor also act as private attorney seeking secret monetary settlements from those he is also engaged in criminally prosecuting is underscored by the amount of money that McKinney pocketed as a result of these illegal deals.  According to an October 15, 2008 article in the Muncie Star Press, Prosecutor reconstructs the record to comply with new rules, the civil forfeiture cases that DA McKinney illegally handled on the side while serving as prosecutor "paid McKinney nearly $100,000 in attorney fees during the last decade."
Earlier the same month, the Star Press reported that Delaware Circuit Court 4 Judge John Feick gave McKinney until Oct. 17 to find an attorney to represent him in a forfeiture case of accused drug dealer Adrian Kirtz, and answer why the prosecutor should not be held accountable for the money seized from Kirtz.  City attorney Charles "Chic" Clark insisted McKinney had violated Feick's order and wants the prosecutor to repay $25,212 deposited in DTF accounts and was later spent.

Attorney Michael Alexander, who represented several of the forfeiture defendants, said the process of seizing assets from suspected drug dealers and depositing them into DTF accounts amounted to theft. Some of the cases remained pending for several years, Alexander said, and confidential agreements indicated the money and assets routinely went to the DTF. "Apparently when they needed money, they went and got it," said Alexander.

Tales of many corrupt sheriffs combined to make the nameless adversary of Robin Hood.

Accounts of misappropriation of asset forfeiture revenues are all too common.  In one example, Florida’s Camden County Sheriff Bill Smith used asset forfeiture funds to purchase a 29 foot boat for questionable purposes, vehicles for 23 non-patrol Sheriff's Office employees, college tuitions and related costs at colleges around the Southeast for favored deputies, and to establish college scholarships and donate to his favored Camden nonprofits.  Smith also used asset forfeiture funds to pay his private attorney, help a boxing club owner pay her lease in Kingsland, fund his department's general operational costs and other violations of federal asset forfeiture sharing conditions. County commissioners repeatedly criticized his use of federal drug money to pay jail inmates to work on private property, including the sheriff's, not just in Camden County but also at his ex-wife's house in South Carolina.

Another spin on the forced “agreement” to forfeit — this time as part of executing a search warrant:

Police armed with drawn guns and a search warrant (which they apparently never returned to the court) broke down the doors of a couple’s newly acquired house in South Carolina. The search party arrested the husband for possession of a tiny amount of marijuana and cultivation of five withered seedlings less than one half inch tall. Threatening to “take away” his house, police forced the man (who prefers to remain anonymous at this point in time) to sign away all rights to the couple’s three vehicles, worth a combined value over $90,000.  No evidence of drugs was found in any of the vehicles.  Over a year has passed since the raid, but no criminal charges have been ever filed by prosecutors. The couple never received notice of intent to forfeit the vehicles, and no judicial proceedings ever took place. To date police have not returned the vehicles nor any of the other personal property seized in the search.

Highway robbery:

In a feature article published in the May 16, 2008 edition of the Texas Observer, Austin-based writer Jan Reid details further accounts of “agreed judgments” forfeiting all rights to seized currency.

A small excerpt from Highway Robbery—One man's painful journey through South Texas' addiction to asset forfeiture explains:

In 2006, a Jim Wells County, Texas deputy named Ray Escamilla was lauded as the nation’s leader in captures of “drug seizure money.” Over four years, the deputy sergeant racked up more than $3 million by working the traffic on U.S. 281 and finding reasons to search cars and trucks. His seizures of suspect cash and several vehicles enabled the sheriff’s department in the tax-poor county to pay the salaries of additional officers and buy patrol cars, guns, SWAT gear, and four dogs trained to find bombs and drugs.

…“But what happens, especially in South Texas, is that some of these county jurisdictions have come to rely on confiscations as a way to supplement their budgets.”

Between 2005 and 2007, according to county reports submitted to the Attorney General’s office, agencies along Highway 77—the Kingsville Crime and Narcotics Task Force, the Kleberg County sheriff, a Kleberg County constable and the Kenedy County sheriff—reported total assets from forfeitures and seizures of $4,486,938. They returned only $41,920 to defendants who appealed through the civil process. (The reports to the state do not describe how seized money was spent.)

During the same period, on U.S. 281, the Jim Wells County sheriff and allied police departments of Premont and Orange Grove reported total assets through forfeitures and seizures of $2,027,736. In neighboring Brooks County, south on U.S. 281, the sheriff’s department reported assets of $1,777,649. Sharing in this wealth of income was Frank Garza, the 79th district attorney, who serves both Jim Wells and Brooks counties and defends the counties in court. Garza’s office saw to it that none of the properties were returned on appeal.

… [T]he practice has become such an important contributor to local government budgets, particularly those of district attorneys, that legislators are loath to change the system. Oscar Garza, a retired colonel of the Jim Wells County Sheriff’s Department who lives in Premont, describes a situation that is more complex and nuanced than a cynical shakedown scheme under the guise of the War on Drugs. “In the mid-nineties,” Garza says, “working with a DEA officer I made the department’s first confiscation under Chapter 59. It was a residence that brought $324,000 into our budget. After that, as we learned more about it, the confiscations started paying for just about everything: our uniforms, firearms, bulletproof vests, cameras, radar and radio systems.”

Read the shocking account of Highway Robbery—One man's painful journey through South Texas' addiction to asset forfeiture:
Javier was stopped twice within an hour while traveling the South Texas highway. Though on patrol two different police agencies, and separated by miles of highway, the two officers  asked identical questions of Javier.  Just as the first officer had done, Officer

Valadez asked Javier if he had any knives, guns, ammunition, or large amounts of money. For the second time in an hour, Javier acknowledged having several thousand dollars in the car.

As soon as Javier said that, the officer’s change of expression and body language could clearly be seen on the videotape. A backup patrol unit veered around to a halt in front of the Mazda. A uniformed officer hustled out of the car with a look on his face that did not appear friendly. A stunned [passenger] was ordered out of the car and told to spread his legs and put his hands on the Mazda’s hood. An officer patted him down.

Valadez walked past Javier stretching a cord that, it turned out, was a leash. The officer came back into view with a dark-ruffed German shepherd. He told Javier to empty his pockets, and when Javier did that, producing a small fold of dollar bills, the dog made a lunge at his hands.

The dog’s lunge was a critical component in the officers’ assertion that they had probable cause to proceed.

“Good boy,” Sergeant Valadez commended the German shepherd, after it had sniffed out the trunk. … 
Continued at: http://www.texasobserver.org/article.php?aid=2760

Further tales of modern day corrupt mercenaries:
Meanwhile, a little farther north in Texas, according to according to a November 2003 Dallas Morning News article, Dallas cops will let you go if you if you won't fight their seizure of your goods, the North Central Texas Narcotics Task Force struck deals with a man who beat his prostitutes and forced them to have his name tattooed on their bodies, another who cooked an estimated half-million dollars worth of methamphetamine, a cocaine dealer, and others for lighter punishments in exchange for cash, cars, motorcycles, jewelry and other property that the task force needed to fund its operations. These criminals each received sentences of probation in exchange for not contesting the forfeiture of assets used to fund the task force. Denver McCarty, a former task force prosecutor, said he offered the deals to a half-dozen defendants during the last two years because the task force needed the money to stay in business.
"If we don't have enough money by the end of the grant year, we're all out of a job," he said. "You kind of knew what kind of forfeiture money you needed to have, or everybody's going home."
"I think it looks bad," said Bruce McFarling, a former North Central Texas task force prosecutor who is now a state district judge in Denton County. "It would be a matter of, we're letting criminals go because they're paying property. Someone with more property will get a better deal than someone else."
Because these buy-offs from criminal prosecution are usually made in private it’s difficult to gauge how widespread such exchanges of prison time for forfeiture deals have become. But according the Dallas Morning News, “published reports indicate this type of private buy-your-way-out-of-jail deals occurred in New York, Massachusetts, Ohio, Arkansas and Wisconsin during the time period immediately preceding the November 2003 article.
"It just keeps going on. What's to stop it?" David B. Smith, co-chairman of the National Association of Criminal Defense Lawyers' Forfeiture Abuse Task Force told the Dallas Morning News in 2003. "Each DA has his own little fiefdom. If he's elected, there's no one above him who can stop it except the public."
Presently, the website for Tennesse’s 21st Drug Task Force website proudly announces its private mercenary status. After having been cut from state funding the 21st Drug Task Force proudly proclaims: “All funding comes from fine money from convicted drug dealers, seizure and forfeiture of assets from drug proceeds sold on our on-line auction site.”

While "in rem" (civil) forfeiture proceedings have been used to enforce Customs duties and to seize enemy ships at sea since the earliest days of our nation (and have been resurrected during the American Civil War to seize property of Confederates and those who aided the Confederate army, and again during prohibition eras to seize property even from innocent owners), the most significant feature of the 1984 Omnibus Crime Bill authorizes police to keep the proceeds from the forfeiture of whatever they seize. The 1984 Omnibus Crime Bill also drastically increased the number of offenses that trigger forfeiture — a continuing trend whereby over 400 different types of crimes now trigger forfeiture.

In Fiscal Year 2007 United States Attorneys obtained a total appraised value of $1,323,035,714 in civil and criminal forfeiture judgments. These figures do not include assets forfeited through federal administrative procedures (in which owners lost property without any litigation). The United States Attorney's Office for the Southern District of New York reported $1.1 billion in forfeiture revenue for calendar year 2007 in that district alone.

U.S. Prosecutors routinely overreach in seeking assets and money judgments.

The tales of local corruption above all involve local police pirates supporting their departments with little or no oversight. But even oversight built into the asset forfeiture mechanisms of the federal goverment has not prevented United States attorneys from vastly overreaching for assets and forfeiture money judgments.

While the federal government obtained 92% of the criminal convictions it sought in Fiscal Year 2007, U.S. Attorneys vastly overreached for assets and money judgments – litigating over $3.8 billion in assets – nearly three times the $1.3 billion value of civil and criminal forfeiture judgments obtained. During fiscal years 2005 and 2006, U.S. Attorneys obtained a 91% conviction rate, but pursued litigation of assets valued over four times the value of forfeiture judgments obtained. (Sources: United States Attorneys' Annual Statistical Report: Fiscal Years 2005; 2006; and 2007.)

In today’s changing economic times the realities and sordid accounts of prosecution and policing for profit will only get worse. Recognizing the reality of the Sheriff of Nottingham syndrome, many states have legislated forfeiture reforms that direct the proceeds of forfeitures to be deposited in the state’s general fund, rather than letting police keep what they seize. Other important state level reforms require the property owner to be criminally convicted of the related crime before property may be forfeited.  But until we enact similar reforms at the federal level local police agencies will continue to bypass state restrictions by turning over seized assets for federal prosecution and awaiting return of forfeited proceeds through federal equitable sharing programs. 

© 2011, Forfeiture Endangers American Rights Foundation
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