Civil Asset Forfeiture Primer Shows Potential for Reform in Texas

In the past week the Center for Effective Justice at the Texas Public Policy Foundation had a Civil Asset Forfeiture Primer at the Capitol, where they assembled a panel of policy makers, legislators, and authorities to give their expert opinions on the matter and to take questions from the audience. Andrew Kloster, a legal fellow from the Heritage Foundation that focuses on civil rights issues was present, along with Matt Miller from the Institute of Justice where he fights for property rights. They were joined by Shannon Edmonds from the Texas District and County Attorneys Association and Texas State Representative David Simpson. The Center for Effective Justice’s Derek Cohen moderated.

Mr. Cohen began by giving the audience background into the issue of civil asset forfeiture. He mentioned that the idea of forfeiture goes as far back as the Roman Empire and has continued on through out the ages before becoming a bone of contention between England and its colonies before and during the American Revolution. He summed up the issue currently in the terms that it has been referred to by media from all sides. Some look at civil asset forfeiture as an “indispensable tool” for law enforcement and prosecutors while others see it as “policing for profit” and “a sustained assault on the Fifth Amendment and due process.”

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The speakers eagerly discussed the topic. Andrew Kloster began by delving deeper into the reasoning behind the creation of civil asset forfeiture in the American system and how that has devolved today into an abused mechanism in modern day law enforcement.  Shannon Edmonds also chimed in clarifying that civil asset forfeiture was intended to make sure that the proceeds of crime didn’t end right back in the pockets of criminals.

But all agreed that the current situation has resulted in spectacular abuses. Families threatened with the removal of their children, owners of small businesses losing their assets, and case after case of small funds and property taken bit by bit from innocent and often helpless citizens. The money is usually enough to make it worth taking, but not enough to justify the legal expense involved in getting it back, leaving most people without representation or due process.

Both Kloster and Miller spoke of the incentive structures that are present in the current system. When law enforcement is making decisions about whether or not they seize assets, they are making decisions about whether or not their office receives that much more funding. It was made clear that the worry about the incentive structure is not because police and prosecutors are bad people, but that they are having temptation thrown very subtly in their way and that it would be better for them and the public to restructure the system.

Miller spoke of several possible ways to address the problem. The first was an outright ban on civil asset forfeiture. States such as North Carolina and Minnesota have either removed the practice or limited it enough to make it obsolete. This would be a more difficult option, with opposition from several lobbies. But short of that, there are several options. A requirement that the funds not go directly to law enforcement or prosecutors’ offices is a step in the right direction, removing the incentive that they have to increase the seizures. Another change that is needed urgently is to ensure that there is due process to the citizens being threatened under this practice. The burden of proof needs to be one the state instead of the citizen, giving those who have no representation a fighting chance at recovering their property. A third option is to have better reporting by the benefiting office about where the funds are coming from, what form they are being obtained in, and information about what happens in hearings, for example, whether or not the individual had representation.

Finally, almost all of the speakers referenced equitable sharing, an arrangement where law enforcement realizes that they are constrained by local laws, perhaps the asset in question isn’t on the list of seizable items, and they then alert and involve federal enforcement and prosecutors to the situation. These groups, operating on different guidelines, then seize the assets and provide the alerting authorities with a percentage of the profits. Matt Miller strongly recommended limiting or eliminating this practice.

Shannon Edmonds argued in favor of retaining the practice. While not disputing that there had been cases of misuse that should be cause for concern, he also believed that the funds procured by the practice were necessary for the continued operation of law enforcement. Quoting Latin, he argued that “misuse of something does not render it useless”.

The audience seemed largely unswayed by his statements, addressing most of their questions to him. They embodied a growing desire in the state to put an end to the practice that exposes every citizen to threat of seizure. The upcoming session provides an opportunity for legislators to make a change.


Harris County Summit: Pretrial and Mental Health Solutions

In December of 2014 professionals from across the board gathered in Harris County to discuss and answer questions about two pressing issues the criminal justice system is facing: pretrial release decisions and mental health. Assembled by the Texas Public Policy Foundation, they called for greater investment in risk assessments that make smarter decisions about pretrial release, and a “humane alternative” for mental health through collaboration.

Marc Levin began and moderated the discussion by noting the challenge that these issues present, and the success that Harris County is already seeing due to some of its initiatives. Crime has decreased, but he argues that if we want to lower it further and increase safety and well being, we need to identify areas of inefficiency and focus there. Levin then introduced the first speaker, David LaBahn, from the Association of Prosecuting Attorneys.

Admitting that his organization mainly works with larger offices, LaBahn acknowledged the time and resources necessary to take on these issues and find solutions. He urged both sides of the aisle to review and evaluate what has been done in these areas with an idea toward improvement. Having chosen Harris County as a pilot for the Smart Prosecution Project with his organization, LaBahn spoke about the potential in new reforms. Shifting focus from pretrial motions to pretrial releases through the use of risk assessments is one of these reforms, he argued. Following that up, needs assessments are pertinent to ensuring that you have the right people for the right reasons.

LaBahn closed with an anecdote that demonstrated the complex situation with medical expenses in the criminal justice system. The numbers show that reform for mental health is necessary, but they need a human reasonable alternative for this to be reached. In his opinion, jails and custodial facilities are not the place to have medical treatment.

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Pretrial Panel

The morning panel consisted of Harris County Sheriff Adrian Garcia, Matt Alsdorf from the Laura and John Arnold Foundation, Tara Boh Klute from the Kentucky Pretrial Program, Judge Ryan Patrick and District Attorney Devon Anderson. They were gathered to discuss the current situation in pretrial, as well as ongoing and potential reforms.

Sheriff Garcia began by stressing the importance of this dialogue and its effect on public safety. Having already decreased the Harris County jail population by over a thousand, he agreed that continued successes would have to be achieved by refining and improving inefficiencies. Risk assessment and bonding schedules are clearly helpful tools that he argues will help bring this about. The Earned Early Release Credit is currently being applied to low-risk inmates, and has proven to be a success. Overall, he urged new methods that put former inmates on a trajectory to a more productive direction. This would result in fewer victims and expended resources.

Matt Alsdorf, the Director of the Criminal Justice Programs at the Arnold Foundation, followed Sheriff Garcia. He echoed the calls for risk assessments, and detailed a pretrial risk assessment that he and his organization had pioneered, that addresses the current conflicts being had with others. Tara Boh Klute provided information as well, on the pretrial programs that she and others have instituted in Kentucky. The lowered costs and supervision necessary bodes well for such reforms in Houston.

Judge Ryan Patrick and District Attorney Devon Anderson provided different outlooks. Judge Patrick brought out that while crime is down in Harris County, dockets are still overcrowded. A new court in Harris County could go a long way to addressing the backlog and allowing new methods to be instituted. DA Anderson remarked on the program currently being used for low risk marijuana offenders that involves less expense and has been a resounding success. Her objective is to keep from creating “classes of people who are sucked into the criminal justice system [forever].”
Mental Health Panel

In the afternoon a panel that included involved parties and stakeholders discussed mental health. Michael Dirden, the Executive Assistant to the Chief of Police, Dr. Teresa May, the Director of the Harris County Community Supervision and Corrections Department, Clarissa Stephens Deputy Director, Harris County Office of Criminal Justice Coordination, Dr. Andy Keller, from the Meadows Mental Health Policy Institute, all gathered to find solutions.

Dirden began by stating the problem; lack of capacity. Without room or alternatives in which to place those with mental illness, all the training in the world won’t be helpful. Dr. May helped put that in context, by discussing the revolving door that this created, wasting resources. She urged the use of risk assessments for the mentally ill in order to best place them.

Stephens highlighted the difficulty that exists in agency education when the system is as vast and varied as Harris County. Dr. Keller agreed and argued that the real hang-up in taking programs to scale in the county is the individualized attitudes among agencies

Judge Oscar Hale and Senator John Whitmire added to the discussion by touching on several other topics. Hale brought out the drug court education in schools program that he is involved in, and the revolving door that makes this necessary. But the drug courts that he and others are now involved in have really been making a difference. Whitmire echoed Keller by advocating interagency communication and collaboration. He emphasized that simply sending someone to prison is the easy option, but that alternatively treatment will provide better results by closing down the revolving door.

The theme throughout the day was collaboration. Risk assessments are being developed in many different ways and can and should be a new component of the system. A system that has improved is to be praised, but a system that continues down that path is a beacon and example to other jurisdictions and even states.

In December of 2014 professionals from across the board gathered in Harris County to discuss and answer questions about two pressing issues the criminal justice system is facing: pretrial release decisions and mental health. Assembled by the Texas Public Policy Foundation, they called for greater investment in risk assessments that make smarter decisions about pretrial release, and a “humane alternative” for mental health through collaboration.


Overcriminalization Goes to the Supreme Court

Ahead of oral arguments in U.S. v. Yates, legal experts demand an end to the proliferation of thousands of capricious federal statutory crimes

Austin, TX— In the run-up to the Supreme Court’s hearing of oral arguments in U.S. v. Yates, Right on Crime, the nationally recognized conservative criminal justice reform organization, will convene a briefing on over-criminalization and prosecutorial overreach.

In this case, a Florida law enforcement officer (deputized as a federal officer by the National Marine Fisheries Service) boarded the ship of a commercial fisherman, John Yates, for an inspection of his catch of more than 3,000 fish. The officer accused Yates of catching 72 undersized red grouper. Upon second count, however, the officer only found 69 groupers. He accused Yates of throwing fish overboard, and for this alleged disposal of evidence, a federal prosecutor criminally charged Yates with violating the “anti-document-shredding” provision of the 2002 Sarbanes-Oxley Act, which was passed in the wake of the 2001 Enron accounting scandal. The violation is punishable by up to 20 years in prison.

The assembled legal experts will discuss solutions to prosecutorial overreach of this sort, such as strengthening mens rea protections in statutes and eliminating certain crimes altogether.

Right On Crime’s parent organization, the Texas Public Policy Foundation, signed an amicus brief in Yates observing that the prosecutorial overreach in the case is part of a larger trend of over-criminalization in America. Modern federal criminal law provides for almost 5,000 crimes. Historically, “crime” was a term restricted to morally blameworthy actions, but today, many ordinary activities are captured by the term. Individuals have been threatened with prosecution (and in some cases served prison time) for importing lobsters in the wrong container, mislabeling paperwork on orchids, and helping injured animals.
Press Briefing on Over-criminalization and U.S. v. Yates, featuring:

  • Marc Levin, Policy Director, Right on Crime
  • Vikrant P. Reddy, Senior Policy Analyst, Right on Crime
  • Adeel Bashir, Counsel for Mr. John Yates
  • William Shepherd, National Association of Criminal Defense Lawyers
  • Paul J. Larkin, Jr., The Heritage Foundation
  • Pat Nolan, The American Conservative Union


Monday, November 3, 2014 at 1:30 PM

American Conservative Union
1331 H Street, NW |  Suite 500
Washington, DC

This event is sponsored by the Texas Public Policy Foundation, the American Conservative Union, the Heritage Foundation and the National Association of Criminal Defense Lawyers.

For more information or to arrange an interview, please contact Kevin McVicker with Shirley & Banister Public Affairs at (703) 739-5920 or [email protected].


Bob Ehrlich: 6 Observations on Reforming Criminal Justice

At the annual State Policy Network convention in Denver, Former Maryland Governor Bob Ehrlich spoke about criminal justice reform and his experience as a supporter of the Right on Crime campaign. The Right on Crime Dinner was co-hosted by the Charles Koch Foundation, and also featured presentations by Right on Crime Senior Policy Analyst Vikrant Reddy and William Ruger, Vice President for Research & Policy at the Charles Koch Institute. (Video and transcript below.) [Read more...]

BOB EHRLICH: It’s really fun to be here and thank you very much for the invitation. Every speaker says thank you for the invitation, it’s great to be here, but I really mean it. Because over the past year I have lectured at the New School, at NYU law, at the George Soros Open Society Foundation, on “Politically Incorrect,” and the Clinton Library. To see a room full of right-wingers tonight just does my heart [good]. So thank you very much. And of course, as a Maryland Republican, hostility does not intimidate me, so we had a lot of fun. And of course, that’s a point we’ll get to in a minute. That this is so counter-intuitive to the left, the dissonance it causes with the progressives today given what is happening in the real world particularly through Republican governorships, it’s difficult for a lot of these progressives to take.

I’ve been asked to briefly review sort of the three legs of our criminal justice program in Maryland: collateral relief, reentry assistance, and alternatives to incarceration. And I’m going to do that briefly, as I said, and give you a few observations along the way. What brings us here? What brings us to the topic?

You all know the numbers. Approximately a quarter of a million incarcerated in federal prison, almost 1.5 million folks incarcerated in state prisons. We live in a nation that imprisons a high percentage of its population than any other nation in the world… We fill our local, we fill our state, we fill our federal facilities to capacity and beyond. And all of you know how we got here: Mandatory Minimum sentences and Truth in Sentencing.

I remember sitting in the state legislature and debating what predicate offenses we would add to our juvenile justice statutes in order to wave more violent teenagers into adult court. Because [in] the air [it] was all about [being] “tough on crime” and increasingly violent pushers, increasingly violent drug offenses. And here we are, a few years later, with this mess.

So, at the state level, executive disinterest has been the rule– and that’s unfortunate. A lot of governors aren’t lawyers; they have no particular interest in this issue. Others remain hesitant. We’ve got a process that promises few political rewards. (I’ll get to that in a minute.) At the federal level, we have a dysfunctional pardons operation in the Justice Department that’s well reported [and] well known. We need to talk about that another day. [That] brings us to my experience in Maryland.

The first leg here is collateral relief. I inherited an interesting system in Maryland. My reliably progressive predecessor as governor, Parris Glendening, was famously quoted one day as saying, “life means life, no parole, no revisitation, that’s the end of the game.” And that’s what we see from generally liberal governors around the country to this day. I think it’s the ‘Nixon goes to China’ syndrome. The left is scared; the left is afraid. The left does not want to be called ‘soft on crime.’ So it’s up to Republican governors particularly to lead the way. And they are, as you all know.

In Maryland, we started with a revitalized process. We began with recommendations from the parole board, victim notification, published notices of decisions, regular order – I wanted to make this a non-story. I wanted those miscreants in the media to see I meant what I said when I ran for governor, which is that governors and presidents use this authority. It’s not controversial. It’s not new, it’s not unique; check the Lincoln movie. Know your history. So the monthly meetings began and they extended throughout my tenure as the governor of the state of Maryland. We also though innocence pardons, the few truly innocent folks, exculpatory evidence come to light years later would help us. And they did.

My observation overall is that this issue is less politically radioactive in the suburbs than it ever has been. Why? Because drug offenses particularly touch every category, every line we draw in our society. Race, ethnicity, sex, religion, you name it. You can go to the suburbs today and talk about this without fear of being called soft on crime, particularly if you’re a conservative Republican governor. Which is pretty ironic. As an executive, if something’s your priority, you have to devote the resources. I had five folks, five individuals, five lawyers in my office of counsel. Two and a half did this everyday. We had a large backlog in the state of Maryland. We used interviews and site profiles and lie detector tests and we looked at everyone in cooperation and facts that sometimes were twenty, thirty years old in cold cases. Few observations concerning collateral relief. We need to encourage more governors to do this. And I’ll get to that in a minute. But your friendships will be tested. Your staff will be tested, your press secretary who kept asking me, why are we doing this, where’s the credit, where’s the good press? Did anybody ever hear of Willie Horton? Your political courage quotient will be tested. Prior to the last two years, there was little interest in this on the right, no credit from the left. And it was never about set aside in our government. It wasn’t about race, creed, colour, it wasn’t about keeping score. It was about doing justice. Which is the fundamental definition of what governors do. I never thought this would be part of my legacy as governor, but because we did things that most governors weren’t doing at the time it has certainly become so. As I run around the country and give these talks and speeches to mostly hostile audiences.

A few years back, I thought there needed to be some centralized mechanism, some place, some venue, where we could actually work on this besides conservative think tanks. So I told the Washington Post there needed to be a clinic-based operation at a law school. It appeared one day in the Washington Post. Within a week, I had five law school deans in the Washington area asking me to set up a clinic at their school. Columbus School of Law at Catholic University won the bidding. They offered the best approach. And now the Ehrlich partnership at Columbus School of Law (which is a big deal by the way: I’m a Protestant at a Catholic institution, I didn’t realize it was controversial, but they told me it was after the fact.)–we’re in our second year of operation. The centre’s up and running. It’s a clinical experience for the students generating petitions. State and federal, around the country. It’s also a think tank, a mini-think tank in an academic setting. And it’s also going to be, after November, hopefully a training ground for new counsels and newly elected governors to visit Catholic one day. I’ll be there, talking to them about the importance of this issue. And hopefully setting up similar operations in their new governments.

The second leg is reentry. This is less sexy and my task was how to make it interesting to people who don’t want to think about the fact that most offenders are going to be on the street again at some point. And as I said, most folks don’t want to think about it. So I sold people on a proposition at a speech I developed which was this: I have been to more jails than most folks would ever hope to dream of or not dream of, including folks in this room. I’ve been to jails as a member of the state legislature. I’ve been to jails as a Member of Congress. I’ve been to jails as governor. I have talked to thousands of offenders, mostly male, in some of the worst environments you can imagine. I’ve had thousands of these discussions and it kept coming back–every discussion kept coming back to two denominators. And some folks in this room may not want to hear about the second one. But the first one was fatherlessness. And the second was, I started with marijuana. Almost every time. And that’s just an observation from my experience.

So I took that observation into my stump speeches around the state of Maryland and said, you know what? Here are the facts. Here’s why these drug offenders are incarcerated in some of the worst facilities you can imagine and here’s what we need to do. So we had a program called Restart. Skilled training, affordable housing, parenting skills, drug treatment. Behind bars, cognitive redevelopment behind bars. Money behind bars. And I could go to the suburbs and talk about it, why we were doing it, and there was no downside to it. In fact, the only point of opposite was the Correctional Officers’ Union, who thought they were going to be replaced in favor of psychiatrists and psychologists. That the COs would be replaced.

And speaking of credit – and I’ll get to this also in my final observation in a second – progressives in the Maryland legislature, my friends in the black caucus, my friends in democratic leadership, who loved what we were doing of course wouldn’t say so. It was, “Bobby, good job, attaboy.” Quietly. As they were condemning me daily for other affronts, including school choice.

The third leg was something we called Project Diversion for those in the system, non-violent drug offenses. Again, a less difficult sell today. Wasting money incarcerating addicts is not a hard sell, again, in the suburbs today. It’s so funny, some of you Marylanders may recall this: Russell Simmons, who’s a pretty relevant guy in today’s culture, campaigned against me. They were on the Steele ticket. Mike Steele was my lieutenant governor. And he told Maryland I was to the right of Attila the Hun and we can’t elect a Republican and the whole place was going to go to Hell. And after a couple of years of these reforms, Russell Simmons came to Maryland and said this, especially in terms of drug laws, a lot of people have given lip service about these ideas, but the Ehrlich-Steele administration came in and they lived up to that. So sometimes the popular culture pays attention to what we’re doing. We also, by the way, expanded drug courts, which you’ve seen in many, many states. I believe they work.

So before we open the floor for questions, six quick observations for your consumption as you leave here tonight:

First, this is an easier issue than it ever has been. We need to take advantage of it. If we’re talking about justice. True justice. Fairness. Why governors get paid.

Secondly, it’s still fragile. Not so long ago in the state of Mississippi, Haley Barbour’s pardons were pretty controversial. And Haley was a great governor. We could be one case away from a Willie Horton. It will set us back, believe me. Now that was a different set of circumstances. But you have to tread carefully here.

Third, this may be the only purple issue in the country. As the Democrats go uber-left, far left, ultra left, everyone had a term to describe Harry Reid and Nancy Pelosi. And Republicans maintain a pretty conservative position in the House and Senate. There are very few issues subject to legitimate compromise. This is one. This is one. A true purple issue.

Fourth, in Maryland I had credibility as a member of the legislature with the victims rights groups. In order to do this in a state, particularly a tough state, you have to have credibility with folks who might cause you a problem. Because I had that credibility as part of this foundation we could do this without fearing ugly press conferences from the opposition. Victims rights folks have to be brought into the matrix.

[Fifth, the Three Arguments.] As we go out and talk about this issue to not right wing or left wing audiences, just general folks, and I do it as well, I just turn to what I used as governor and use three arguments. One is constitutional: Lock them up in many cases is wrong constitutionally. If that didn’t work, [two,] it was moral. It’s the right thing to do. Again, why we get paid. And the third was just practical. What do you want walking on your street next week, next month, next year? Many of these folks, most of them are coming out. In what condition do you want them in? It’s not progressive, pejorative, to spend a few bucks behind bars.

My [sixth] observation is just political. As I said earlier, a lot of my friends on the left loved what I was doing but would never ever talk about it in public. Republican governors are leading the way. I hope the next Republican president, 2016, also leads the way. But we shouldn’t do it with the expectation that we’re going to get credit from the left. Or that this is going to be the issue that breaks into the racial divide, the racial partisan divide. It probably won’t. But as we know, it’s the right thing to do and ultimately the right thing to do will pay political benefits. So a few words, hopefully words of wisdom, for your consumption.

I’ll be glad to answer a few questions about our experience with this issue generally and I’ll let your eat your dessert. Thank you very much and godspeed.


Erick Erickson: Support Right on Crime

RedState Editor (and Right on Crime signatory) Erick Erickson endorses the Right on Crime campaign at the 2014 RedState Gathering in Ft. Worth, Texas.

Earlier, Senior Policy Analyst Vikrant Reddy interviewed Senior Fellow and Former Texas House Corrections Chairman Jerry Madden about his involvement in corrections reform in Texas and about the national work of Right on Crime.

ERICK ERICKSON: Folks, as they’re leaving the stage, I want to say Red State signed on and I personally signed on to the Right On Crime agenda, having been a lawyer for a number of years and also doing a lot of indigent criminal defense. I was – as one of those hard on crime, lock them all the way people, just how absurd it is that the level of criminalisation, business regulations, and so many things that shouldn’t put people away for years in jail, and, frankly, in a lot of cases, people who very much need help who instead of getting help are being thrown in jail forever, it’s – I encourage you to get involved and understand what Right On Crime is about because, you know, conservatives can take a tough stance on crime, but why are we putting good Americans away and ruining lives for things that you and I, we scratch our head over and say, this is just dumb?