Inviting Transparency in the Lone Star State

Retired Johnson City, Kansas, sheriff Currie Myers is no stranger to the rule of law. Formerly a special agent to the Kansas Bureau of Investigation and a task force agent for the U.S. Customs Service and Drug Enforcement Administration, Myers has come face to face with his share of convicted criminals.

However, Myers has also encountered a debilitating threat that is largely hidden from public view and that has impacted innumerable scores of innocent Americans in every state since the height of the drug war three decades ago: namely, civil asset forfeiture.

Civil asset forfeiture is a practice whereby law enforcement may seize a person’s assets without necessarily charging that person with a crime or securing a conviction. While there are growing efforts in communities across the country to curb this injustice, results have been uneven. In Texas, home to one of the worst climates for civil asset forfeiture, law enforcement officials are on track to pocket nearly $60 million in cash and property taken from people during asset seizures in 2016 alone.

To fan the profligate flames even further, the U.S. Department of Justice recently reinstated its controversial Equitable Sharing Program, which allows state and local law enforcement to perform property seizures under permissive federal law while keeping up to 80 percent of the spoils.

At the April 7 event co-hosted by the Texas Public Policy Foundation (TPPF) and the Charles Koch Institute in Austin, Texas (Civil Asset Forfeiture in Texas: Where and Why Does it Occur?), Myers, who was joined by other criminal justice reform experts and advocates, provided a rare and eye-opening view into law enforcement’s perspective on civil asset forfeiture abuse.

“Law enforcement officers are mirror reflections of the societies in which they serve,” he said. “We first have to change the culture and urge officials to come forward and admit this is a problem.”

A new study unveiled during the event by TPPF’s deputy director for the Center for Effective Justice Derek Cohen provided a comprehensive heat map pinpointing the cities and counties in Texas where civil asset forfeiture is most abused by law enforcement.

Cohen’s study discovered that the majority of seizures, though small, are a result of routine traffic stops on major Texas highways in rural areas. However, larger and more densely populated areas produce richer concentrations of forfeiture activity.

The danger lies in the temptation of law enforcement agencies to make spending decisions based on the availability of forfeiture revenue. Because seized funds often go directly to their operating budgets, law enforcement agencies have come to depend on asset forfeiture, at the cost of both legitimacy of function and the safety and freedom of citizens.

Cohen said that while some groups believe there is little to no incentive to shift the burden of proof from the innocent to Texas law enforcement, he believes the ultimate flaw lies in current laws that empower laziness.

“Law enforcement is a core government service that needs to be funded as a core government service yet ultimately held accountable for core competencies,” Cohen said.

Vikrant Reddy, senior research fellow at the Charles Koch Institute and former manager of Right on Crime—a project of TPPF, the American Conservative Union Foundation, and Prison Fellowship—explained the two principled problems that spur civil asset forfeiture abuse: unfortunate incentives and costly legal hurdles.

In fact, thousands of innocent people have been forced to fight legal battles that can last more than a year to in order reclaim money or other belongings that have been seized.

Reddy said that in the communities where this abuse is most prevalent, citizens feel relentlessly harassed, as an overwhelming number of them have either fallen victim themselves or know someone who has had their assets wrongfully seized.

“People who live in the communities where this type of abuse happens have begun to lose trust and faith in law enforcement,” Reddy told the crowd. “As a result, some of the policies currently in place are actually harming public safety, not helping it.”

While Reddy acknowledged that being a law enforcement official is difficult, he emphasized that the job should ultimately be based on evidence and probable cause. “To be very clear, we have sympathy for law enforcement,” said Reddy. “We know that someone has to be out there catching the bad guys, and we realize there will be mistakes made.”

Rep. Phil Stephenson of the Texas House of Representatives, who has heralded bipartisan civil forfeiture reform efforts, was also a panelist at last week’s event. Stephenson said that in order to improve transparency and accountability, Texas should start looking to the recent actions of New Mexico, Ohio, and Montana for reform inspiration.

Currently, Chapter 59 of the Texas Code of Criminal Procedure mandates that agencies engaged in asset forfeiture report only topline summaries of the value that is forfeited to the Office of the Attorney General (OAG).

Until the 84th Legislature’s regular session concluded, the OAG was not required to aggregate or publish further information. Previous efforts to seek greater transparency in the process had been defeated, garnering opposition from those who directly benefit from the practice. “In my opinion, full disclosure and the Sunshine Rule always work,” said Stephenson.

Cohen, Myers, Reddy, and Stephenson are all hopeful that the nation can return to the law of due process, uphold and defend the Constitution, and maintain a culture of accountability and respect. “It is possible to enjoy liberty and safety simultaneously,” said Myers. “We live in the greatest nation in the world because of the Constitution and accountability—we just need to remember uphold them.”

A first step to fostering accountability and transparency is to understand the depth of the issues impeding criminal justice reform. While defining just how much civil asset forfeiture occurs in Texas is impossible, studies such as TPPF’s provide raw and valuable insight into the ways the process can be more transparent.

Such information continues to garner bipartisan support as numerous groups take umbrage with the practice’s disregard for basic property rights and disproportionate effect on certain communities. In order to promote the study of this and other issues related to criminal justice and policing reform, the Charles Koch Foundation invites proposals for research.

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