John Oliver on Civil Asset Forfeiture

A case study in how quickly incentives can warp the rule of law.

Hat tip: Daniel Lippman.

Comments

I generally agree with the criticism of forfeiture laws. However, I think this brings up something that should be addressed by attempts to derive a serious economic theory of regulation; enforcement.

Imagine two worlds, both have a 65 mph speed limit. In one world, cops enforce it at their descretion which usually means they only write tickets when the diver is perceived to be causing a risk by them...or perhaps if it is month end and they need to write some tickets for their quota. In this world say you have a 10% chance of being caught if you drive 65-70, 20% 70-80 and 40% above 80.

In the other world cars have little boxes that communicate with cell towers, every intersection has speed cameras, and so on. 99% chance you're going to get a ticket if you go a half mph over 65.

If you were just looking at regulation, both worlds look exactly the same. Can't legally drive 66+. In reality, though, the first world is much less repressive and in terms of economic cost probably much more efficient.

Lesson here is regulation can easily become oppressive simply by executives deciding to take a 100% enforcement policy. I wonder then what civil forfeiture would look like if they tried to follow 100% enforcement. Kid gets caught with one joint? We go after your house. A bar serves a 20 yr old with a fake ID, the entire franchise is taken.

I agree with your points, but I also think there are certain merits of the 100% enforcement world. Namely, (i) there is now less discretion for enforcers to potentially abuse, which should lessen corruption; and (ii) the public is now more aware of the *policy* itself, rather than some superposition of policy and enforcement. Both of those things seem like advantages, but I'm not sure how to weight them against the disadvantages you note. Wonkism can be tough.

100% enforcement seems like a terrible policy to me. It costs departments more money to enforce first of all. Moreover, it wouldn't eliminate abuse issues. A policeman could simply let all people of race x violate the rules, while strictly persecuting race y. While you're right about the public understanding the rules to a higher degree, it would only increase anti-police sentiment.

I don't buy the cost argument, at least not in all cases. For example, enforcing speed laws on a toll road at ~100% efficiency is easy: monitor entrance & exit times, cross reference license plates to the DMVs database, and mail tickets. You can save a ton on state trooper salaries: no humans needed. And it could eliminate abuse issues. Since it's fully automated, there's no chance for human to tweak the system. Agreed that this example is not representative of all enforcement situations, though.

Increasing anti-police sentiment is either a feature or a bug, depending on your views.

I wonder what the feedback cycle would be like in a world of close to 100% enforcement. I imagine lawmakers would be a bit more careful - might put a curb on over-legislation. Or at least switch regulations to more direct approaches, such as laws against reckless driving rather than using discretionary enforcement of speed limits to achieve the same goal.

I suspect one reaction would be to lower the penalties. I've heard (could be wrong) that in NJ tickets issued by cameras on stoplights carry no points while running a red light and getting caught by a cop does.

Mathematically a preliminary cost of a regulation could be estimated by taking the burden of the penalty and multiplying it by the probability of getting caught.

Indeed this is the case.

Corrupt Proggers like Ed Rendell are totally against your idea.

http://www.wpxi.com/news/news/report-govs-car-clocked-speeding-repeatedly-on-tur/nGkHH/

Good points Curt. F.

Discretion is a feature IMO. Yes it may be abused but if you don't have discretion then writing the regulation becomes much more onerous...and it requires the regulatory writer to try to capture all the wisdom from intelligent discretion into the formal regulation itself. I'm not sure that is possible and even if it was would the regulation end up being so long and complicated that no intelligent cop could even enforce it?

IMO you could counter the temptation for corruption with discretion thru other means, for example logging stops and logging 'warnings' versus 'tickets' issued. You can keep discretion but limit it.

You could tweak the system by just driving the speed limit through the toll station.

Is that what we want? Someone who speeds dangerously but stops to have lunch at a rest stop could appear to have driven well within the speed limit at the toll booth.

I know people who hold the view that 100% enforcement is the only fair law, and if you can't live with 100% enforcement you are highlighting the inherent injustice of the law in the first place. That view is tempting, but I think on balance unreasonable. There is a large set of laws that make sense to have on the books but which would be absurd to enforce at 100%. These are things like jay walking and minor traffic violations. My sense is there is not a stable state that results in positive social benefits where you are enforcing jay walking at 100%. Jay walking is not really a matter of justice. It doesn't matter if a large number of people get away with it, so long as there is a deterrent of some sort such that most people don't. To be honest, illegal immigration strikes me as exactly the same kind of thing.

Enforcement is not free, it is an economic good and like any other good or service it is subject to scarcity. Even murder, which should never be able to be 'excused' by 'discretion' is not enforced 100%. If it was then we'd spend trillions trying to close every cold case file under the sun.

It sounds like in this case we have a regulation that is too strict, and that is only saved by less than perfect enforcement.

I agree with this point. The Asset Forfeiture laws are too strict and in many case ridiculous. And they don't seem too work at as intended. Drug use hasn't exactly disappeared since they've been adopted.

And neither have any of the other cash heavy black market activities like human trafficking and prostitution.

Solution: make cash illegal.

In the automated, low-cost 100% enforcement scenario, it may be reasonable to simply reduce the severity of the punishment so that the desired modification in driving behavior is accomplished more broadly without causing broad resentment of the enforcement agency.

I mean, what if the speeding ticket you received by the auto-cop was, say, $5 for every MPH over the speed limit? So, if you drove 66 MPH you'd get a $5 ticket, etc.

Perhaps, if prices were set carefully enough, the enforcement agency could slow more speeders down and pay less to do it, resulting in a safer highway system than we currently have.

Exactly. Current laws are written with enforcement in mind. If you change enforcement practices, the law may necessarily need to change. The speeding scenario set up outlines a virtually costless, efficient enforcement regime. In terms of similar scenarios, the closest I come is tolls. You can try to zip through the SpeedPass lane without a speedpass, but they have cameras that are very good at catching you. Costless, near perfect enforcement. In such cases, they don't confiscate your car but rather give you a (relatively) small ticket that costs more than the toll would've. And it works fine.

I remember in studying economic analysis of law, the optimal punishment for breaking the law was inversely proportional to the likelihood of getting caught (and directly proportional to the societal costs of the violation). So if enforcement goes from say 10% to 50%, you should cut the fine from $100 to $20, so the expected cost of violating the law remains $10. By eliminating chance and lumpy results you also improve fairness in most people's conception.

Interestingly in Canada the provinces where fiscal deficits are the norm usually equals a more rigorous enforcement of laws. Or maybe it is the other way around. Enforcement costs money, and if there isn't a return to society for strict enforcement, it doesn't happen unless cost is not an issue because of government borrowing. On the other hand regulatory enforcement in a fiscally disciplined environment, where competing needs vie for limited resource, the department that wants to vigorously enforce needs to hire, needs substantial resources for court challenges and the like, and the returns to the economy and by extension fiscal inputs usually are negative.

A few years ago the provincial authorities demanded a zero tolerance for speeding. If you were over, you got a ticket. A substantial proportion decided to challenge the fines, and eventually the judges and courts told the police and those who mandated this stupidity to back off. There weren't enough resources.

The problem with a discretion approach is that it leaves the field ripe for political harassment. And it adds real regulatory risk; the various inspectors that I deal with come to an understanding of what is required, and the good ones communicate with the contractors. That understanding is subject to change by staffing changes, where the rules suddenly change. Interestingly an old old union pressure tactic is to work to rule, which usually brings the whole operation to a halt.

"work to rule, which usually brings the whole operation to a halt."

This says everything about government.

Except it also applies to many private sector jobs, in fact unions sometimes call a 'stealth strike' by putting out a notice for members to 'follow all safety rules'...which is code for 'do everything by the book so the system grinds to a halt'.

This reveals, IMO, that there are really two books in play. The formal book and the informal one. The questions are which book is larger, the formal or informal? And what is the optimal ratio of book sizes? Many libertarian oriented people seem like they would like the informal book to be nearly zero putting all the 'real rules' into the formal book. Is that optimal though? Perhaps many people who think this way have a bit of social ineptness so they aren't as good at picking up on the informal rules so they try to substitute by over mastering the formal rulebook (Call it Dungeon Master Syndrome)

1. The formal book is governance, private or public sector.

2. The informal book is what is actually required in order to produce at a certain level.

3. Progressive 'White Knights', are annoyingly making constant power plays by defecting against average men, who in this case are 'socially inept role playing game players.'
I'm sure that goes over well with your feminist friends, Boonton, but some people are more concerned with equality under well established laws than playing personality politics.

Cute but dodges the point. Formal rules require certain skill sets (the ability to read and remember large amounts of text, the ability to see how 'loopholes' and 'outs' written in the text can be used to one's advantage etc.). Informal rules require different skill sets to master (i.e. the ability to 'read' the crowd, pick up on what is and isn't acceptable socially, etc.).

People who are better endowed with one type of skill set have an incentive to put forth arguments that the corresponding 'book' should trump the other one. Yet that is not the same as an optimization argument. It seems to me the most optimal point would likely be a mix of formal and informal rules rather than the scale weighted to one side. What exactly is the economic argument for assuming optimal (whether you are talking in terms of GDP, justice, morally good or whatever) is all on one side or the other?

I am a little confused by your apparent switch from 100% enforcement to something like 100% penalty.. You didn't posit that in scenario 2, going 66mph would result in car forfeiture, only a ticket. A ticket, btw, that can and almost certainly would increase as the infraction became more severe.

Fair point, I was thinking one way to challenge an overly severe law, though, would be to apply 100% enforcement and 100% of the legal penalty. If prosecutors/police started seizing homes and businesses that even had a single person in it who carried illegal drugs it wouldn't be wrong before some serious limitiations were put on forfeiture power by either lawmakers or judges.

For example, suppose in addition to taking the cars of those who showed up at the museum, the prosecutor tried to claim the museum itself!

"I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike--those opposed as well as those who favor them. I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."

Ulysses Grant

It didn't work out very well though

I believe it was Montesquieu who suggested that it is the certainty, not the severity, of the punishment that deters.

For example, if under 18 and caught smoking a joint, the punishment should be to have to rewrite a test on marijuana which cites methodological problems in understanding its negative effects, and to write a 500 word essay on other things they could be doing with their time. Over 18 of course, their body, their choice.

If you want to go for such severe measures, I think you will find that people simply will not enforce those rules.

Thank you Jeff Goldblum!

Sarah Stillmann's articles on civil forfeiture in the New Yorker from August 2013 are well worth a read.

Is there anybody else on TV who does as good of a job at investigative reporting as John Oliver? Serious question

I may be wrong but it seems like John Oliver is a great consolidator of other people's work. The show does some of its own investigation (the beauty pageant thing comes to mind) but my impression is that we see quite a bit of clips from other reports that have already aired. Just my impression as a regular viewer and as a fan of the show.

For better or for worse, Oliver is an issue popularizer. He talks about what other people have talked about, but to a wider audience and in a more entertaining way.

I don't consider consolidation to be a negative. It's the main reason I read blogs instead of traditional news sites. Are any of the other TV sources as good at it or do enough original research to overcome the huge handicap they're placing on themselves?

That beauty pageant piece was an example of everything that's wrong with John Oliver. He attacked the Miss America pageant with clips from the Miss USA pageant. That is the worst kind of "journalism."

Maybe if you agree with his points. His piece on payday loans was pretty at-odds with most economic research on their existence (that they're a good tool for the vast majority of people who use them and most people who use them are glad they were there).

I also felt he missed some key elements in his payday loans story, but not in that regard. Can you link to some of this research? The first three papers I turned up in a quick search all seemed to be negative on payday loans.

http://www.nber.org/papers/w14659
http://edq.sagepub.com/content/17/1/8.short
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1319751

There are a lot of people who live off payday loans. It ends up becoming a tax on their income. Friend used to work at a payday loan place. The same people would come in every payday to pay off their loan and take a new one. These loans are not cheap. A good example of humans being irrational. For those who use payday loans appropriately and rarely it just might work.

Really? I first encountered these same points about 20 years ago on usenet (just one more issue that John Quiggin missed in this sadly mis- and under-informed article: http://crookedtimber.org/2014/08/09/whats-left-of-libertarianism/), and I recall seeing something on forfeiture in the late 90s on 60 minutes or something similar. I'm glad to see that Oliver isn't just working from the party script.

Did anyone else notice the Al Jazeera logo in the corner of some of his video?

I'm wondering which John Gall quote is appropriate here: 'Systems grow to oppose their own proper function,' or 'Intrasystem goals come first.'

Can anybody recommend organizations/regulators/politicians that are working to change this?

I've read over the last few years a large number of articles on the issue, including the New Yorker and Washington Post articles cited above and in the video. As far as I can remember, none mention any steps to move towards reform. How does one fight judicial precedent? What regulatory body has oversight?

Any pointers would be appreciated

The Institute for Justice

http://www.ij.org/

e.g. they have a class action suit against Philadelphia's program

http://www.ij.org/l-l-10-14-class-action-lawsuit-challenges-the-philadelphia-forfeiture-machine

The IJ does great work. They've been fighting back against absurd small business regulations and eminent domain abuse for years.

Thanks for the responses.

Also came across this good news from Minnesota. Seems a law has passed banning civil forfeiture.
http://www.forbes.com/sites/instituteforjustice/2014/05/07/minnesota-forfeiture-reform/

Hmmm, IJ must be a leftist organization...

In 1965, the leftist Supreme Court overturned a civil forfeiture by legislating from the bench in Quantity of Books v. Kansas and then a year later in One 1958 Plymouth Sedan v. Pennsylvania.

In 1996, a constitution loving Supreme Court upheld civil forfeiture and let due process do the will of We the People in Bennis v. Michigan.

In 2006, this constitutional due process principle was upheld by freedom loving GW Bush's 8th district appellate judge Steven Colloton with HW Bush's Buzz Arnold in United States of America v. $124,700 in U.S. Currency. The leftist LBJ appointee Donald P. Lay objected with "I cannot agree that the government has proven, by a preponderance of the evidence, the requisite substantial connection between the currency and a controlled substance offense."

;-) ;-)

Being serious, from justice.gov:

"The Comprehensive Crime Control Act of 1984 established the Department of Justice Assets Forfeiture Fund to receive the proceeds of forfeiture and to pay the costs associated with such forfeitures, including the costs of managing and disposing of property, satisfying valid liens, mortgages, and other innocent owner claims, and costs associated with accomplishing the legal forfeiture of the property.

"The Attorney General is authorized to use the Assets Forfeiture Fund to pay any necessary expenses associated with forfeiture operations such as property seizure, detention, management, forfeiture, and disposal. The Fund may also be used to finance certain general investigative expenses. These authorized uses are enumerated in 28 U.S.C. §524(c)."

The White House and Senate were Republican, the Democrats hammered for a decade for being liberals responsible for social change and that lead to drugs and crimes, and this law incorporated the conservative war on crime and drugs by by jack boot government policy of prison and confiscation. And this law was added to a must pass budget bills during the height of the election campaign with Reagan doing an FDR and Truman Whistlestop PASSENGER TRAIN campaign run through the rust belt, so there could be no opposition to this law by civil libertarians like those damn leftist liberals who destroyed America.

Keep in mind,that Kennedy dissented, so the fifth judge putting that over the top was Ginsburg

http://www.washingtonpost.com/news/the-watch/wp/2014/07/25/rand-paul-introduces-bill-to-reform-civil-asset-forfeiture/

This is seriously scary stuff. Even more scarier is the lack of concern in the comments here.

It's the kind of scary that breaks your spirit.

Yes it's the most scariest.

Makes you wonder what kind of world some people want to live in.

It would be naive to think that similar powers would not be abused to reinforce the power of an oppressive state. Better that some people get away with it than to have a system which enables perfect enforcement.

If there is a defining feature of humans, it is that we can engage in self improvement. But some people prefer a system where anyone who takes the slightest misstep will be painted black from the inside out to the end of their days.

Oppressors are attractive to some people, who are constantly looking for a "stronger horse". They also wear fancy uniforms etc.

I noted, though, that the people worshipping punitive measures never concede that they themselves might be once targeted by them. There is some kind of "just world syndrome" in play - some minds just can't grasp the idea that public powers may engage in wanton destruction or systematic injustice against innocent targets.

There has already been a television show that covered this, watch season 4 of The Shield. I thought the show was just making up the story line, I had no idea that the police could really do this.

Comments for this post are closed