Civil forfeiture allows money, cars and other property to be seized if there is suspicion it is involved with a crime
By Ellen Wulfhorst
NEW YORK, July 31 (Thomson Reuters Foundation) - Victor Marquez was a migrant worker going home to Mexico when he was stopped by police who took more than $19,000 he had earned picking beans in Florida, claiming it was drug money.
More than a year went by before Marquez, who was never charged with a crime, could get his money back.
Such stops that can up-end if not devastate the lives of migrants and their families are poised to rise with a recent call by the Trump administration to increase so-called civil asset forfeiture by federal law enforcement, critics say.
Civil forfeiture allows money, cars and other property to be seized if there is suspicion it is involved with a crime. No criminal charge is necessary, and the practice is used to varying degrees by local, state and federal authorities.
While forfeiture may help nab a drug courier or a smuggler, anyone with a lot of cash and no bank account can easily get caught up in its web, critics say.
"It's a huge concern," Sam Brooke, an attorney at the Southern Poverty Law Center (SPLC) who worked on the Marquez case, told the Thomson Reuters Foundation.
"It's a definite move in the wrong direction."
Announcing the Trump administration plans, U.S. Attorney General Jeff Sessions reversed an Obama-era decision to limit "adoptive forfeiture". This allows police to sidestep possible local forfeiture restrictions by giving seized property to the federal government which keeps a share but returns the rest.
Forfeiture allows police to use goods taken as a revenue source, and the attorney general's decision is "troubling," said California Congressman Darrell Issa, who has campaigned against it.
"Criminals shouldn't be able to keep the proceeds of their crime, but innocent Americans shouldn't lose their right to due process, or their private property rights," the Republican legislator said in a statement after Sessions' announcement.
In most states, police can keep as much as the entire value of confiscated property, which "allows police to go treasure hunting, beefing up their budgets on the backs of innocent Americans," Issa wrote in a newspaper opinion piece.
In the Marquez case, police stopped the laborer in 2008 in the southern state of Alabama as he was riding in a truck, taking his earnings home to build a house. A judge dismissed the case the following year.
In another case, a manager for a Christian rock band from Myanmar touring the United States last year was stopped by police in Oklahoma for a broken tail light, according to the Institute for Justice, a libertarian group that advocates for minimal government and opposes civil forfeiture.
After Eh Wah, a U.S. citizen, was questioned for six hours, police let him go but kept more than $53,000 he was carrying. The cash included ticket and CD sales as well as donations intended for an orphanage in Thailand and a school in Myanmar.
Eh Wah was later hit with a drug charge that was dismissed, and it was two months before he could retrieve the money.
In an Institute for Justice report "Policing for Profit" in 2015 assessing forfeiture abuse, only seven of the 50 U.S. states earned a good grade.
"Civil forfeiture threatens the constitutional rights of all Americans," it said in the report foreword.
"Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law."
Forfeiture expert Stefan Cassella, however, said it should not be forgotten that it is an important tool against smugglers, human traffickers, international crime rings, corrupt dictators and terror groups.
Relatively small amounts of cash, by comparison, are "a small subset" of civil forfeitures overall, the former federal prosecutor said.
"Asset forfeiture is intended to deprive the wrongdoer of the illegal proceeds of his crime," he said. "I don't think anyone in law enforcement wants to go out and abuse the rights of poor people or immigrants or whoever they are."
Immigrants and the poor may not be targeted so much as they are particularly vulnerable, said the SPLC's Brooke.
"If they didn't have the money on their person and it was in a bank account, it wouldn't be seized. It's as simple as that," he said. "The law is going to hit them harder than it would a person who is putting their paycheck in a bank account."
The SPLC has called for forfeiture reform in its home state of Alabama, where law enforcement is not required to make any public accounting of what it has seized.
"We should not be permitting the government to just seize any money that they find on someone just because they have a hunch that there might be something criminal," Brooke said.
The U.S. Attorney General is following a hard-line approach Trump has advocated, he said.
Earlier this year, when told about a state senator in Texas who wanted to rein in civil forfeiture, Trump replied: "We'll destroy his career."
"He (Sessions) has a very clear law-and-order perspective that just misses all the nuances of what is required for a justice system to actually be fair and just," said Brooke.
"This use of civil forfeiture is just the latest example of that."
(Reporting by Ellen Wulfhorst, Editing by Belinda Goldsmith; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's rights, trafficking, property rights, climate change and resilience. Visit http://news.trust.org)
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