| | | Sheriff's Employee Embezzled Funds in Keeping with the Spirit of Civil Asset Forfeiture
One guy with gambling debts is a news story, but a formal policy of legalized theft is a national scandal.
J.D. Tuccille | 3.1.2023
Critics of civil asset forfeiture quite rightly refer to the practice of swiping cash and property from people accused (but not convicted) of crimes as "legalized theft." That enrages law enforcement types who insist they're just abiding by the law, never mind that the law is contemptible. But there are times when forfeiture clearly crosses over into outright robbery, such as when John Cox, an Albany County, New York, sheriff's department employee, used seized proceeds to cover his lousy luck with cards or horses. It's simultaneously awful and thoroughly in keeping with the policy of civil asset forfeiture.
"The head of the Albany County Sheriff's Office business office was charged with grand larceny and five counts of forgery after he allegedly siphoned more than $68,000 from the department's federal forfeiture funds account and forged Sheriff Craig Apple's name to cover it up," Albany's Times-Union reported last week. "Apple said he believes Cox was using the money to pay off gambling debts."
The case was highlighted by the Institute for Justice (I.J.), which works to end asset forfeiture.
"The misuse of forfeiture funds is shockingly common because civil forfeiture is inherently abusive and non-transparent," said I.J. Senior Legislative Counsel Lee McGrath. "In just the past few years, we've seen a Pennsylvania deputy steal $200,000 from a safe, a Michigan prosecutor embezzle $600,000 in funds, and widespread problems with forfeiture reports in states like Kansas and Oklahoma."
Notably, Cox's personal redirection of forfeited assets was discovered in the course of a U.S. Justice Department audit of money acquired through civil asset forfeiture by the Albany County Sheriff's Department and the Albany County District Attorney. That is, the feds suspected that the departments as a whole were misusing seized property and cash and accidentally discovered the business office manager's personal pilfering in the process.
The Justice Department got involved only after county Comptroller Susan Rizzo issued an earlier audit finding the office of District Attorney David Soares was "not compliant with regulations that govern the expenditure of" both state and federal forfeiture funds. Soares's office was found to have withheld roughly $365,000 in seized assets it was supposed to turn over to New York's Office of Addiction Services and Supports.
A few months later, another audit by Rizzo found a similar "failure to comply with legal requirements in the processing of forfeited funds by the office of Sheriff Craig Apple. In addition, she said, "several expenses processed with forfeited funds were impermissible" under the law.
One guy paying off his gambling debts was just the cherry on top.
Unfortunately, as I.J.'s Lee McGrath points out, this is all too common. Many law-enforcement agencies seize assets from unfortunate people, allegedly on suspicion that it's the proceeds of crime or about to be used in criminal activity. That even the cops don't believe this is apparent from the fact that many of those whose funds are taken are never charged—they're just stuck with the thankless task and expense of suing to regain what was (legally) stolen from them.
"Civil forfeitures often occur without any judicial proof aside from vague assertions that assets are 'likely' connected to criminal activity. In many states, prosecutors don't even need to file criminal charges to seize cash, cars or homes," David Safavian pointed out in a 2021 piece for Governing. "But the most perverse issue with civil forfeiture is that it turns the presumption of innocence on its head by requiring owners to somehow prove their property was not related to criminal activity. Because proving a negative is nearly impossible, most give up."
Sometimes the threat of criminal charges is used to coerce people into surrendering their property.
"They could face felony charges for 'money laundering' and 'child endangerment,' in which case they would go to jail and their children would be handed over to foster care," Sarah Stillman wrote in a 2013 piece for The New Yorker of the options offered by authorities to a family passing through Tenaha, Texas. "Or they could sign over their cash to the city of Tenaha, and get back on the road."
Tenaha officials so often crossed the line into overt highway robbery that they were eventually forced by litigation to rein in their excesses. But prosecutors around the country still extort money from people by threatening criminal charges if they don't sign away assets.
With property and cash lifted from the public and flowing through so many law-enforcement agencies, the opportunities for embezzlement are many. That results in cases like that of Cox and also of the Pennsylvania narcotics detective and the Michigan prosecutor cited by I.J.'s McGrath who both make the Albany County gambler look like a piker.
But the audits in Albany County reveal that the problem goes beyond freelance pilferage. Officials in charge are also prone to misusing assets they nab from unfortunates who fall into their grasp. That includes diverting funds to pet projects, like Apple and Soares. Or it might involve the purchase of expensive cars, as Reason's C.J. Ciaramella reported in 2018 of then-Gwinnett County, Georgia, Sheriff Butch Conway. That's pretty much inevitable when billions of dollars are available to cops and prosecutors in return for a little arm-twisting. Yes, billions.
"Since 2000, states and the federal government forfeited a combined total of at least $68.8 billion," I.J. revealed in a 2020 report. "And because not all states provided full data, this figure drastically underestimates forfeiture's true scope."
To their credit, some officials concede that civil asset forfeiture is inherently unjust. In 2021, Arizona began requiring criminal convictions prior to forfeiture in most cases. More jurisdictions, including the federal government, should follow suit. As it is, the feds too often help local police bypass reforms by "adopting" forfeiture cases and then "sharing" funds back to the originating agency.
It's natural to marvel when you read about somebody like John Cox, an employee of a law enforcement agency, acting like any other crook and embezzling funds. But don't forget that he was caught only because the offices of the sheriff and the D.A. were already under investigation for their own shenanigans, and that's part of the much larger problem with civil asset forfeiture.
One guy with gambling debts is a news story, but a formal policy of legalized theft is a national scandal.
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