African immigrant Sidialy Diaafar did not commit a crime on May 2, 2019. But he did drive southbound on Interstate 95 in a rental vehicle with out-of-state plates.
That was enough to catch the interest of the Cumberland County Sheriff’s Office in North Carolina. Deputies knew that cigarette smugglers typically carry their contraband north from the tobacco belt to New York, so members of a special task force waited on the opposite side of the road near Fayetteville to intercept the cash coming back.
“Smugglers traveling southbound are often encountered with bulk currency, which are the illegal proceeds received in New York,” explained Bryan Moultis, a federal agent, in court documents.
What Moultis failed to mention is that carrying large amounts of cash is not illegal. Police who find nothing but currency can make insinuations but not arrests. Unfortunately, the laws in most states allow the government to take and keep assets anyway through a process called civil forfeiture.
The moneymaking scheme, which requires no conviction in most jurisdictions, allows the government to use civil standards of proof. Diaafar lost $22,930 stored in his vehicle’s center console on the day of his traffic stop without facing charges or even receiving a citation.
During the roadside interrogation, he explained that he was carrying the cash from New York for potential investment in a convenience store. A search produced no drugs, weapons, or contraband of any type. Yet the government seized the money and took permanent ownership about 10 months later, on Feb. 28, 2020.
Other agencies also choose cash over contraband when they have a choice. They show their bias when they focus their patrols on the direction of travel most likely to produce revenue.
In Tennessee, the money route is westbound Interstate 40. A Nashville television news team tracked police activity in the area and found 10 times as many traffic stops on the westbound lanes, which carry drug proceeds back to Mexico.
Missouri police do something similar. Phelps County Sheriff’s Department Sgt. Carmelo Crivello said he focuses on westbound I-40. “The westbound, generally speaking, are the profits from the drug sales,” he said.
In essence, these agencies levy a sales tax on cartels — allowing their contraband to reach buyers and then taking a cut of the proceeds. North Dakota state Rep. Rick Becker said he worries about the perverse incentive in his state.
“If we want to prevent drugs from coming into North Dakota, for instance, on Highway 83 near Bismarck, you would be doing stops on the northbound lanes,” he testified in a House committee meeting on Jan. 26. “If you want to get the cash, you would be on the southbound lanes.”
Despite the potential for due process violations, police and prosecutors defend civil forfeiture as an important law enforcement tool. They insist that the maneuver makes communities safer by crippling cartels and raising revenue for cash-strapped agencies. Lobbyists call it a double win, yet they rarely provide evidence to support their claims.
New research from the Institute for Justice, a nonprofit organization, moves beyond the emotion of the debate and looks at state-level data using empirical methods. “Does Forfeiture Work? Evidence from the States,” a report published on Feb. 10, shows that focusing on cash rather than crime fails as a law enforcement strategy.
Police do not solve cases at higher rates, and drug use does not drop with greater forfeiture revenue. The cash grabs merely boost revenue for law enforcement’s own sake.
The incentive to patrol for profit is particularly strong in the 32 states where police and prosecutors keep at least 80% of the revenue generated to pad their own budgets. Overall, from 2000 to 2019, forfeiture produced at least $68.8 billion nationwide.
Temptations to exploit forfeiture could get even worse in 2021, as the COVID-19 pandemic hamstrings local budgets. The new study, which analyzes nearly a decade of data from five states that provide necessary reporting detail, shows that forfeiture activity increases with economic downturns — when public agencies are most desperate for budget supplements.
Governments need revenue, but they also need restraints. Officers who camp out on southbound I-95 and westbound I-40 prove that additional oversight is necessary. Police who want to protect and serve should patrol for crime, not cash.
Daryl James is a writer and Kathy Sanchez is a researcher at the Institute for Justice in Arlington, Virginia.
