Under civil forfeiture, Americans who haven’t been charged
with wrongdoing can be stripped of their cash, cars, and even homes. Is that
all we’re losing?
On a bright Thursday afternoon in 2007, Jennifer
Boatright, a waitress at a Houston bar-and-grill, drove with her two
young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden,
Henderson’s home town, near the Texas-Louisiana border. They made the
trip every April, at the first signs of spring, to walk the local
wildflower trails and spend time with Henderson’s father. This year,
they’d decided to buy a used car in Linden, which had plenty for sale,
and so they bundled their cash savings in their car’s center console.
Just after dusk, they passed a sign that read “Welcome to Tenaha: A
little town with BIG Potential!”
They
pulled into a mini-mart for snacks. When they returned to the highway
ten minutes later, Boatright, a honey-blond “Texas redneck from
Lubbock,” by her own reckoning, and Henderson, who is Latino, noticed
something strange. The same police car that their eleven-year-old had
admired in the mini-mart parking lot was trailing them. Near the city
limits, a tall, bull-shouldered officer named Barry Washington pulled
them over.He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.
No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.
Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.
The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)
The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.
“Where are we?” Boatright remembers thinking. “Is this some kind of foreign country, where they’re selling people’s kids off?” Holding her sixteen-month-old on her hip, she broke down in tears.
Later, she learned that cash-for-freedom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country. “Be safe and keep up the good work,” the city marshal wrote to Washington, following a raft of complaints from out-of-town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband.
Outraged by their experience in Tenaha, Jennifer Boatright and Ron Henderson helped to launch a class-action lawsuit challenging the abuse of a legal doctrine known as civil-asset forfeiture. “Have you looked it up?” Boatright asked me when I met her this spring at Houston’s H&H Saloon, where she runs Steak Night every Monday. She was standing at a mattress-size grill outside. “It’ll blow your mind.”
The basic
principle behind asset forfeiture is appealing. It enables authorities
to confiscate cash or property obtained through illicit means, and, in
many states, funnel the proceeds directly into the fight against crime.
In Tulsa, Oklahoma, cops drive a Cadillac Escalade stencilled with the
words “This Used To Be a Drug Dealer’s Car, Now It’s Ours!”
In Monroe, North Carolina, police recently proposed using forty-four
thousand dollars in confiscated drug money to buy a surveillance drone,
which might be deployed to catch fleeing suspects, conduct rescue
missions, and, perhaps, seize more drug money. Hundreds of state and
federal laws authorize forfeiture for cockfighting, drag racing,
basement gambling, endangered-fish poaching, securities fraud, and
countless other misdeeds.
One result is the rise of improbable case names such as United States v. One Pearl Necklace and United States v. Approximately 64,695 Pounds of Shark Fins. (Jennifer Boatright and Ron Henderson’s forfeiture was slugged State of Texas v. $6,037.) “The protections our Constitution usually affords are out the window,” Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert, observes. A piece of property does not share the rights of a person. There’s no right to an attorney and, in most states, no presumption of innocence. Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of their seized goods. Washington, D.C., charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve.
The tangled nature of the process became clear when I spoke to Nelly Moreira, a stout, curly-haired custodian who lives in Northwest D.C. Moreira relied on her 2005 Honda Accord to drive from her early-morning job, cleaning Trinity Washington University, to her evening job, cleaning the U.S. Treasury Department. In March, 2012, her son was driving her car when he was pulled over for a minor traffic violation, and, after a pat down, was found to have a handgun. He was arrested, and her car was seized.
Moreira, who grew up in El Salvador, explained in Spanish that she received a letter in the mail two months later asking her to pay a bond of one thousand and twenty dollars—which she took to be the fee to get her car back. Desperate, she borrowed cash from friends and family to cover the bond, which is known in D.C. law as a “penal sum.” If she hadn’t, the car would have been auctioned off, or put to use by the police. But all that the money bought her was the right to a complex and slow-moving civil-forfeiture court case.
She was left struggling to make her car payments each month as her Honda sat in a city lot, unused and unsheltered from the elements. The bond, the loans, and the public-transportation costs added up. “There were days I didn’t have a good meal,” she told me in February, sitting beneath her daughter’s quinceañera portrait in her narrow fuchsia-painted row house.
The Public Defender Service for the District of Columbia won the release of Moreira’s car last summer, and in May filed a lawsuit against the city on behalf of approximately three hundred and seventy-five car owners like Moreira. Describing the policy as “devastating for hundreds of families who depend on their cars for many of the urgent and important tasks of daily life,” it called for higher standards of proof and the end of penal-sum fees. At a public hearing on July 11th, D.C.’s attorney general, Irvin Nathan, acknowledged “very real problems” relating to due-process rights. But he warned that millions of dollars raised by forfeiture “could very easily be lost” and “an unreasonable burden” placed on his office if the reforms supported by the Public Defender Service were enacted. He proposed more modest changes that would leave the current burden of proof untouched.
“We all know the way things are right now—budgets are tight,” Steve Westbrook, the executive director of the Sheriffs’ Association of Texas, says. “It’s definitely a valuable asset to law enforcement, for purchasing equipment and getting things you normally wouldn’t be able to get to fight crime.” Many officers contend that their departments would collapse if the practice were too heavily regulated, and that a valuable public-safety measure would be lost.
But a system that proved successful at wringing profits from drug cartels and white-collar fraudsters has also given rise to corruption and violations of civil liberties. Over the past year, I spoke with more than a hundred police officers, defense attorneys, prosecutors, judges, and forfeiture plaintiffs from across the country. Many expressed concern that state laws designed to go after high-flying crime lords are routinely targeting the workaday homes, cars, cash savings, and other belongings of innocent people who are never charged with a crime.
When Jennifer
Boatright and Ron Henderson complained to the county in the hope of
retrieving their savings, they got another surprise. Lynda Russell, the
district attorney, told them she had warned “repeatedly” that they did
not have to sign the waiver, but, if they continued to contest it, they
could be indicted on felony charges. “I will contact you and give you an
opportunity to turn yourself in without having an officer come to your
door,” she wrote in a letter mentioning the prospect of a grand jury.
Once again, their custody of the kids was threatened. Boatright and
Henderson decided to fight anyway.
When out-of-town drivers who
felt victimized by a Tenaha forfeiture called local lawyers for help,
their business wasn’t always welcomed. “That’d be like kicking a basket
of rattlesnakes,” one defense lawyer warned a forfeiture target. Often
they were referred to a defense attorney named David Guillory, in nearby
Nacogdoches. Guillory is a broad-faced man with blue eyes and the
gregarious, cheerful disposition of a Scoutmaster. (He is, in fact, an
assistant Scoutmaster of local Troop 100, and keeps the “Handbook of
Knots” by his desk, near heaps of legal briefs.) He moved to Nacogdoches
seventeen years ago and set up shop as a small-town civil-rights
lawyer. He specialized in cases around the state that made neither
friends nor profits: mostly, suing policemen for misconduct.By the time Boatright and Henderson spoke with Guillory, he was already acquainted with what he refers to as “the Tenaha operation.” Several months earlier, he’d received a call from a plump-cheeked twenty-seven-year-old man named James Morrow, who worked at a Tyson plant in Pine Bluff, Arkansas, slicing chicken strips for prepared foods. “He told me a pretty startling story,” Guillory recalls. In August, 2007, Tenaha police pulled Morrow over for “driving too close to the white line,” and took thirty-nine hundred dollars from him. Morrow told Guillory that he was on his way to get dental work done at a Houston mall. (The arresting officers said that his “stories of travel” were inconsistent, as was his account of how much money he had; they also said they detected the “odor of burned marijuana,” although no contraband was found in the car.) Morrow, who is black, was taken to jail, where he pleaded with authorities to call his bank to see proof of his recent cash withdrawal. They declined.
“They impounded my car, and they impounded me, too,” Morrow told me, recalling the night he spent in jail. When he finally agreed to sign away his property, he was released on the side of the road with no money, no vehicle, and no phone. “I had to go to Wal-Mart and borrow someone’s phone to call my mama,” he recounted. “She had to take out a rental car to come pick me up.” For weeks, Morrow said he felt “crippled,” unsure of what to do. He says that a Tenaha officer told him, “Don’t even bother getting a lawyer. The money always stays here.” But finally he decided “to shine a big ol’ light on them.”
After Morrow was steered to Guillory, he took a day off from his job and arrived at Nacogdoches with stacks of old bank files to prove where his money came from. “He knew how hard he’d worked for that money,” Guillory told me, “and every dime was taken from him.” Guillory decided to find out if what had happened to Morrow was more than a fluke. He was taken aback by the scale of what he uncovered. It was a baroque small-town scandal, but it was also a story with national reach. He wondered how many people across the country felt “crippled,” as Morrow did, by statutes so little known yet so widely used.
In West Philadelphia last August, an
elderly couple named Mary and Leon Adams were finishing breakfast when
several vans filled with heavily armed police pulled up to their red
brick home. An officer announced, “We’ll give you ten minutes to get
your things and vacate the property.” The men surrounding their home had
been authorized to enter, seize, and seal the premises, without any
prior notice.
“I was almost numb,” Mary Adams, a
sixty-eight-year-old grandmother with warm brown eyes and wavy russet
hair, recalled. When I visited her this spring, she sat beside her
seventy-year-old husband, who was being treated for pancreatic cancer,
and was slumped with exhaustion. A little earlier, he had struggled to
put on his embroidered blue-and-yellow guayabera shirt; his wife,
looking fit for church in a green jacket, tank top, and slacks, watched
him attentively as he shuffled over on a carved-wood cane to greet me.
Leon explained his attachment to their home in numerical terms. “1966,”
he said. “It’s been our home since 1966.” 
The home served the Adams family well over the next half century, as Leon took a job as a steel-plant worker, and later as an elementary-school janitor, and Mary worked as a saleswoman at Woolworth and, eventually, as a patients’ care assistant at Bryn Mawr hospital. (“I treated every patient as a V.I.P., whether you were in a coma or not!”) More recently, the home has helped the couple ease into their retirement. “I love digging in the dirt,” she said, referring to their modest, marigold-lined front yard, and “sitting on the porch, talking to neighbors.”
Their home also proved a comfortable place to raise their only son, Leon, Jr.—so comfortable, in fact, that the young man never quite flew the nest. At thirty-one, slender and goateed, Leon, Jr., occupied a small bedroom on the second floor. When his father, who had already suffered a stroke, fell ill with cancer, he was around to help out. But, according to a report by the Philadelphia Police Department, the younger Leon had a sideline: on the afternoon of July 10, 2012, he allegedly sold twenty dollars’ worth of marijuana to a confidential informant, on the porch of his parents’ home. When the informant requested two more deals the next week, the report said, he made the same arrangements. Both were for twenty dollars, purchased with marked bills provided by police.
Around 5 p.m. on July 19th, Leon, Sr., was in his bedroom recovering from surgery when he was startled by a loud noise. “I thought the house was blowing up,” he recalls. The police “had some sort of big, long club and four guys hit the door with it, and knocked the whole door right down.” swat-team officers in riot gear were raiding his home. One of the officers placed Leon, Jr., in handcuffs and said, “Apologize to your father for what you’ve done.” Leon, Jr., was taken off to jail, where he remains, awaiting trial.
The police returned about a month after the raid. Owing to the allegations against Leon, Jr., the state was now seeking to take the Adamses’ home and to sell it at a biannual city auction, with the proceeds split between the district attorney’s office and the police department. All of this could occur even if Leon, Jr., was acquitted in criminal court; in fact, the process could be completed even before he stood trial.
Mary Adams was at a loss. She and her husband were accused of no crime. Instead, the civil case was titled Commonwealth of Pennsylvania v. The Real Property and Improvements Known as [their address]. For years, Mary had volunteered for the Philadelphia More Beautiful Committee, and as a block captain she always thought that civil forfeiture was reserved for crack houses and abandoned eyesores. Now her own carefully maintained residence was the target.
The Adamses had a lucky break on the morning of their eviction notice: when an officer observed Leon’s frail condition, he told them that they could stay in the house while the forfeiture proceedings advanced. This gave them some time to figure out how to fight. “We had no money,” Mary told me, so they couldn’t hire a lawyer. But they learned of a free “Civil Practice” clinic at the University of Pennsylvania Law School, run by Louis Rulli, where students help indigent homeowners challenge civil-forfeiture claims.
“It was an area of the law that was under the radar and very prone to abuse,” Rulli told me when we met at his clinic, in a wing of the law school with a separate entrance and an air of potted-plant competence reminiscent of a doctor’s office. Beside him sat Susanna Greenberg, a colleague, and Julia Simon-Mishel, who had worked on the Adamses’ case as a law student. Rulli noted that the system is designed to defeat anyone who isn’t an expert in navigating its intricacies. “These are affirmative defenses—you lose them if you don’t raise them,” he said. “Even lawyers don’t know about these defenses unless they’ve worked on forfeiture specifically.”...
Whether this should be the law—whether, in the
absence of a judicial finding of guilt, the state should be able to take
possession of your property—has been debated since before American
independence. In the Colonial period, the English Crown issued “writs of
assistance” that permitted customs officials to enter homes or vessels
and seize whatever they deemed contraband. As the legal scholars Eric
Blumenson and Eva Nilsen have noted, these writs were “among the key
grievances that triggered the American Revolution.”
The new nation’s
Bill of Rights would expressly forbid “unreasonable searches and
seizures” and promise that no one would be deprived of “life, liberty,
or property, without due process.” Nonetheless, Congress soon authorized
the use of civil-forfeiture actions against pirates and smugglers. It
was easier to prosecute a vessel and seize its cargo than to try to
prosecute its owner, who might be an ocean away. In the ensuing decades,
the practice fell into disuse and, aside from a few brief revivals,
remained mostly dormant for the next two centuries.
Revenue gains were staggering. At the Justice Department, proceeds from forfeiture soared from twenty-seven million dollars in 1985 to five hundred and fifty-six million in 1993. (Last year, the department took in nearly $4.2 billion in forfeitures, a record.)
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