The Temptations of Asset Forfeiture
It's been six years since <a href="http://www.cityethics.org/node/474">I last wrote about how
asset forfeiture</a> is a serious temptation to engage in ethical
misconduct. I was planning to write about it again in light of a
recent U.S. Supreme Court decision on the subject, <a href="http://www2.bloomberglaw.com/public/desktop/document/Kaley_v_United_Sta…; target="”_blank”"><i>Kaley</i>
v. <i>United States,</a> </i>when I read that, according to <a href="http://www.nydailynews.com/new-york/nyc-crime/ex-brooklyn-da-charles-hy…; target="”_blank”">an
article in today's New York <i>Daily News</a>,</i> a former Brooklyn district attorney was found by
NYC's Department of Investigation to have improperly used money
seized from drug dealers and other criminal defendants (that is, by
asset forfeiture) to pay a consultant hundreds of thousands of
dollars for work on his re-election campaign last year.<br>
<br>
Should any official, especially an elected official with pressures
to spend as much money as possible for re-election, have access to
this kind of money? It is arguable that assets seized by the
criminal justice system should be used for the criminal justice
system, as has been allowed since the 1984 passage of the
Comprehensive Drug Abuse and Prevention Act. It only seems fair. But
that is only from the agency's point of view.<br>
<br>
With an incentive to seize assets in order to have more money
to spend on one's own agency (even if never used for personal
purposes, valuable perks are often involved), officials are tempted to
seize too much too soon, which is unfair to citizens. And fairness
to citizens matters more than fairness to government agencies.<br>
<br>
There is also something known
as civil-asset forfeiture, for which no criminal charges need even
have been filed. Asset owners often have to prove their innocence to
get their property back. This is even more likely to be unfair. Check out <a href="http://blog.arrestrecords.com/infographic-civil-forfeiture-the-lack-of-…; target="”_blank”">a recent infographic presentation about civil-asset forfeiture on the Arrest Records blog</a>, and its links.<br>
<br>
Since seized assets are not taxpayer funds, they tend to be brought
in and spent outside of the budget process, without its relative
transparency. This heightens the temptation to spend it for personal
purposes.<br>
<br>
And seized assets can be handed down by the federal and state
governments, again without transparency. This creates different
incentives, for example, rewarding officials for showing preferential treatment or for
following orders that should never have been given in the first
place.<br>
<br>
The best thing would be to require a complete accounting for every
asset seized, to have clear rules for seizing, preserving, and
returning assets, and to have all retained financial assets placed
into the general fund rather than spent by criminal agencies. This
lessens both the incentive to be overzealous in seizing assets and
the temptation to misuse the assets. But such a change needs to also
be accompanied by rules preventing the interference in asset
seizures by government officials who might press officials to seize
more assets in order to lessen deficits and keep taxes from rising, so that they are more likely to be re-elected. No one
should have an incentive to seize or spend assets for any purpose other than those of the criminal justice system.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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