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- 2022-06-20 · Abusive Fines and Fees — Bill Maurer
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- 2022-06-20 · Abusive Fines and Fees — Bill Maurer
Who argued it
Related topics
Due Process · Civil Asset Forfeiture
Background
Definition and mechanics
In these episodes, “policing for profit” names a system in which law enforcement seizes and retains citizens’ property, with the seizing agency or its municipality keeping the proceeds. Bob Zadek introduces the term by reference to a data-filled compendium entitled “Policing for Profit” published by the Institute for Justice, which he describes as pointing out an abuse existing throughout the country whereby law enforcement was allowed to keep and enjoy the benefits of property obtained through forfeiture Abusive Fines and Fees (2022). Sam Gedge, an attorney at the Institute for Justice, calls civil forfeiture one of the greatest threats to property rights in the nation today, allowing state, local, and federal governments to take cars, cash, and homes oftentimes without even convicting or charging a person with a crime Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge explains that in most states and at the federal level the money goes straight back into the coffers of the same agencies responsible for the seizures, and that the police and prosecutors deciding whether to take property are often the same agencies that stand to benefit financially Awaiting the Verdict in Timbs v. Indiana (2018). Mike Greenberg, in a later episode, describes this as the second of two chief buckets of problems with civil forfeiture: the agencies that decide whether to seize and permanently confiscate property are the agencies that then receive the proceeds back into their budget, giving them seriously perverse incentives to focus on seizing cash and cars rather than on things that might more directly threaten public health and safety Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023).
Equitable sharing
Zadek describes the federal government as a behind-the-scenes cheerleader under a related process called “equitable sharing,” providing a statutory inducement to local law enforcement to seize property Awaiting the Verdict in Timbs v. Indiana (2018). Gedge confirms the mechanism: some states have tried to create state law checks on the worst abuses of civil forfeiture, but the federal government has a work-around under which local or state police who seize property can hand the money over to the federal government, which proceeds under more lenient federal procedures and then funnels a lot of that money right back to those same state and local law enforcement agencies Awaiting the Verdict in Timbs v. Indiana (2018). Zadek characterizes the federal government in this role as the “uber fence.”
Due process and the burden on owners
Greenberg sets out what he calls the due process bucket of problems. The government does not need to convict anyone of a crime to permanently keep property, and does not have to prove beyond a reasonable doubt that anybody did anything wrong, so the owner is essentially forced to prove his own innocence or his property’s own innocence Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023). Because it is a civil case, there is no right to a lawyer and often no right to a jury, and the procedures to contest a forfeiture are often Kafkaesque; where the value of the property is not high enough to justify hiring a lawyer, people often rationally walk away rather than prove their own innocence Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023). Zadek adds that the process is not merely a temporary seizure but a seizure and retention, with the burden falling on the citizen to get the property back Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023).
The Timbs case
Zadek introduces Tyson Timbs as a low-level drug dealer in rural Indiana who worked in a factory and became addicted to painkillers after a foot injury, his addiction escalating to heroin. After his father died he received a $70,000 life insurance policy and spent about half on a new car; he later sold a very small amount of heroin to undercover officers, was convicted of a low-level drug offense, and police in Indiana seized his new car Awaiting the Verdict in Timbs v. Indiana (2018). Gedge, one of Timbs’ counsel, describes the case as traveling from the Indiana state courts to the Indiana Supreme Court to the United States Supreme Court, where it was heard about a week before the broadcast Awaiting the Verdict in Timbs v. Indiana (2018). Zadek frames the case as likely to extend the reach of the Eighth Amendment and to help bring back into balance the relationship between citizens and their government Awaiting the Verdict in Timbs v. Indiana (2018).
Fines and fees as revenue
Bill Maurer, a managing attorney in the Washington State office of the Institute for Justice, joins Zadek to discuss abusive fines and fees, a system by which municipalities have learned to live off fines and fees paid by often the portion of their voters least able to afford it, taking property under the guise of fines and fees rather than through taxation Abusive Fines and Fees (2022). In Brookside, Alabama, a town of about 1,500 people just outside Birmingham, the city beginning in about 2018 started getting a large amount of revenue from ticketing its citizens; the number of tickets issued and the revenue went up by 640%, though from 2011 to 2018 the town had recorded only 55 serious crimes and no rape and no murder, and in 2017 to 2018 no serious crimes at all Abusive Fines and Fees (2022). Brittany Coleman, a young mom on the way to a birthday party, was pulled over for following too closely, issued a ticket, and had her car towed, leaving her standing on the side of the road Abusive Fines and Fees (2022). Maurer calls this sort of policing for profit not just unconstitutional but oftentimes extraordinarily cruel Abusive Fines and Fees (2022).
The data on fiscal stress
Brian D. Kelly, an economist, tells Zadek that he was not a big believer in the policing for profit aspect because what he had read was always anecdotes, so he took a systematic look at whether municipalities undergoing fiscal stress would see forfeiture policing increase Brian D. Kelly on the False Promise of Policing-for-Profit (2019). Using the unemployment rate as a correlate of fiscal stress, he looked at hundreds or thousands of municipalities over a period of 10 to 12 years and found, to his surprise, a very powerful yes: as the unemployment rate goes up, the number of forfeiture actions, the number of assets seized, and the value of those assets go up as well Brian D. Kelly on the False Promise of Policing-for-Profit (2019). The numbers he reports are that a 1% increase in unemployment predicts an 8.5% increase in the value of forfeited assets and a 9.5% increase in the number of forfeited assets, and that a 4% increase in unemployment predicts over a 30% increase in forfeiture actions Brian D. Kelly on the False Promise of Policing-for-Profit (2019).
Across episodes: what changed
The topic recurs across the episodes with a shift in emphasis rather than a reversal. The 2018 episode treats policing for profit through a single Supreme Court case and the Eighth Amendment question it raises, with Gedge supplying the mechanics of forfeiture and equitable sharing Awaiting the Verdict in Timbs v. Indiana (2018). The 2019 episode turns from anecdote to measurement, with Kelly testing whether fiscal stress predicts forfeiture and reporting the unemployment correlations Brian D. Kelly on the False Promise of Policing-for-Profit (2019). The 2022 and 2023 episodes broaden the frame to municipal fines and fees and to due process, with Maurer describing Brookside’s ticketing explosion and Greenberg setting out the burden placed on owners Abusive Fines and Fees (2022) Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023). The episodes show no episode in which a guest disputes the phenomenon.