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The Temptations of Asset Forfeiture
Tuesday, June 3rd, 2014
Robert Wechsler
It's been six years since I last wrote about how
asset forfeiture 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, Kaley
v. United States, when I read that, according to an
article in today's New York Daily News, 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.
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.
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.
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 recent infographic presentation about civil-asset forfeiture on the Arrest Records blog, and its links.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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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.
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.
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 recent infographic presentation about civil-asset forfeiture on the Arrest Records blog, and its links.
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.
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.
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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