ASSET FORFEITURE AND POLICING

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EDITORIAL INTRODUCTION

ASSET FORFEITURE AND POLICING

The core research article by John L. Worrall and Tomislav V. Kovandzic(2008, this issue) (or “WK” as Eric Baumer refers to the pair) and the twopolicy essays by Baumer and Skolnick (2008, this issue) that accompany itprovide substantial information and ideas about the dynamics of the for-feiture of assets by persons who have been apprehended for engaging incertain criminal acts. The concept of forfeiture has roots deep in westernjurisprudence. The deodand (literally “to be given to God”) process thatoriginated in eleventh-century English law dictated that both animals andinanimate objects (such as horses and carts) deemed by a coroner’s jury tobe “responsible” for a fatal “crime” should be confiscated to the king andused for pious purposes. The practice was repealed by Parliament only in1846 when railroad owners understandably objected to their holdings (oran equivalent sum) being incorporated into the ruler’s purse when a trainwas involved in a fatal accident.

Public agencies traditionally strive to secure additional resources toexpand their reach and enhance their power, and often these agencies arenot particularly scrupulous about how it is accomplished. Preferredsources of additional funds often have been wrongdoers who can beregarded as moral leers. Today, drug-dealing offenders, who are the focusof the WK article, may lose their automobiles and have other propertyconfiscated. The rationale for such action is that the goods were presuma-bly acquired as a result of illegal transactions or were used in such transac-tions and, more subtly and perhaps invidiously, that their possession mayprovide the wherewithal for the drug dealer to finance a sophisticateddefense against the charges.

For WK, the empirical question is whether forfeiture plays a significantpart in determining how the police will act both in their pursuit of drugtraffickers and in terms of their general enforcement mission. More specif-ically, WK sought to learn whether the police will have recourse to forfei-ture more often in “generous” jurisdictions in which all or most of thefunds realized go directly into their own budget, and they will less oftenuse forfeiture if the moneys are fed into the general revenues. They con-clude that “police agencies rationally elect to pursue the most lucrativeavenues for asset forfeiture, availing themselves of generous state laws.”WK found no clear evidence that a greater amount of forfeiture was usedin states that permit the police to receive the largest part of the proceeds,although they grant that measurement difficulties may have affected this

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result. They also learned that in states that place limits on what the policecan derive from forfeiture, local law-enforcement agencies work aroundsuch restrictions by teaming up with federal agencies to mount what arecalled “adoptive forfeitures” under the terms of which they are paid on thebasis of their part in the enforcement process. States that allow the policeto keep all or most forfeiture funds were predictably found to have lessrecourse to adoptive forfeitures.

Policy implications involve moral as well as criminological issues, and itis useful to have empirical data to bring to bear on the moral considera-tions. Certainly, if it can be demonstrated that police departments makeenforcement decisions based largely on the forfeiture potentialities of thesituation, which was a matter suggested by WK, then this information canbe factored into arguments against asset forfeiture. If it can be proven thatforfeiture is not a crime deterrent (the question remains unsettled, but oneof the essayists, Jerome Skolnick, suspects that it is not a deterrent), thenthis too can be included in a rendering of a policy decision regarding assetforfeiture.

Skolnick’s policy reservations regarding asset forfeiture start from abelief that the intense war on drugs is unreasonable and that any tacticthat enhances that war is likely to be counterproductive. At a minimum,he seems to favor the position that forfeited funds should be fed into gen-eral revenue, which thereby undercuts police incentive to prioritize forfei-ture cases. Baumer notes that policies such as asset forfeiture often havenegative side effects, but these effects must be weighed against their posi-tive contributions. He concludes that a good deal more information mustbe collected before an acceptable policy statement can be renderedregarding asset forfeiture in law enforcement.

It is notable that forfeiture is employed primarily against drug traffick-ers and customers of streetwalking prostitutes. Neither group enjoys highsocial approval; nobody proposes forfeiting the private company jet inwhich the corporate vice president flew off to a meeting with competitorsat which prices were fixed in violation of the antitrust laws. Former U.S.House of Representatives member Henry Hyde claimed (although WKcould not verify the figure) that in about four of five cases in which civilforfeiture procedures were employed, the originating case never was triedcriminally.

All of the contributors to this discussion refer to a study by KatherineBaicker and Mireille Jacobson (2007) that noted that budget makers maysqueeze agencies that derive funds from other sources, such as theamounts that law-enforcement departments receive from asset forfeiture.This strategy is common on the part of financially hard-pressed legislators.A lottery, for instance, may be inaugurated with a considerable portion ofits receipts earmarked to bulk up a fiscally starved school system, but in


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short order, the municipality and the state allocation to the schools may bereduced by an amount commensurate with what has been received fromthe lottery. What could happen to the law-enforcement community is thatit will find itself irremediably beholden to receipts from asset forfeiture tomaintain its level of performance, just as universities today increasinglyfind themselves pressing faculty to bring in outside research resources tokeep the operation afloat at a desired level.

An endemic failure has occurred in American governance to associateevaluative research endeavors with policy changes. In regard to asset for-feiture, a small portion of the very considerable sums of money garneredfrom the procedure should have been (and should be) put aside for sophis-ticated inquiries into the consequences of the approach, including detailedon-site case studies that involve police departments, those whose assetsare seized, and the implications for morale and enforcement effectivenessnot only in regard to narcotics but also on all other fronts. The observationof a Command Paper put before the English Parliament is particularlypertinent in regard to issues such as asset forfeiture. “It is both wastefuland irresponsible to set experiments in motion and omit to record andanalyze what happens,” the report declared. “It makes no sense in termsof administrative efficiency and, however little intended, it indicates acareless attitude toward human welfare” (Committee on Local Authorityand Allied Personal Services, 1961).

GILBERT GEISUniversity of California, Irvine

Senior Editor

REFERENCES

Baicker, Katherine and Mireille Jacobson2007 Finders keepers: Forfeiture laws, policing incentives, and local budgets.

Journal of Public Economics 91:2113–2136.

Baumer, Eric2008 Evaluating the balance sheet of asset forfeiture laws: Toward evidence-

based policy assessments. Criminology & Public Policy. This issue.

Committee on Local Authority and Allied Personal Services1961 Command Paper 3703. Report presented before the British Parliament.

Skolnick, Jerome H.2008 Policing should not be for profit. Criminology & Public Policy. This issue.

Worrall, John L. and Tomislav V. Kovandzic2008 Is policing for profit? Answers from asset forfeiture. Criminology &

Public Policy. This issue.


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Gilbert Geis, Ph.D., is professor emeritus, Department of Criminology, Law, andSociety, at the University of California, Irvine, and a past president of the AmericanSociety of Criminology. His most recent books are White Collar and Corporate Crime(Prentice Hall, 2007) and Criminal Justice and Moral Issues (with Robert F. Meier)(Oxford University Press, 2006).

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ASSET FORFEITURE AND POLICING