As you cross the California-Nevada state line, you slow to exactly the speed limit from the California-15mph-above, or at least I would encourage you to. Growing up near the state line, you get warned before nearly every trip east of the hazards of driving with a California plate. Expect to be pulled over, expect a ticket for a violation that may normally be a warning, and try to not look like a big-city liberal.
While somewhat of a lighthearted joke among Californians, concerns about getting pulled over for going 5mph over the speed limit in rural Nevada reflect a real set of perverse incentives facing rural law enforcement. Often facing severe budget constraints, rural law enforcement may choose to act as a “reverse Robin Hood,” funding their agencies with assets seized from citizens. While excessive speeding tickets are perhaps the most prominent method of doing so, another source of funding comes from the process of civil asset forfeiture.
Excessive ticketing in rural America
As the tax base which generally supports law enforcement in rural areas has declined, small towns have increasingly come to view traffic tickets as an important revenue stream. To pick an extreme example, Georgetown, LA, a town with fewer than 500 residents, derived 92% of their income from traffic tickets. Georgetown is just one of many small towns that have made national headlines for their intensive ticket-writing efforts.
A 2019 study by Governing identified a concentration of communities where fines exceeded 10% of general fund revenue, largely in rural parts of the South. In contrast, fines and forfeitures accounted for just 2% of general revenues among the 50 biggest US cities. The study notes that high fine revenue is common in high poverty rural areas throughout the country, especially in states with low property tax rates. See the below map published as part of their study for reference:
Another factor that may affect ticketing is state to state variation in the amount of fine revenue that a locality can keep, with many states imposing a cap on the proportion of a municipal budget that may be derived from fines or mandating that such funds be appropriated to public schools.
An introduction to civil asset forfeiture
In 2016, in Muskogee, Oklahoma, the tour manager for a touring Burmese Christian musical act, Eh Wah, had $53,000 cash that they had raised for charity seized during a routine traffic stop. Eh Wah was interrogated for hours and then released without being charged with a crime, and also without his $53,000. By utilizing civil asset forfeiture, the Muskogee County Sheriff needed no arrest, just an entry noting that the Sheriff had taken “Possession of drug proceeds.”
Civil asset forfeiture grants law enforcement officers the ability to seize property when they believe that property to be used in or derived from unlawful activity. Forfeiture proceedings are actions against an item of property itself, not an individual, leading to amusing casenames like the seminal US v. Forty-three Gallons of Whiskey, or the more recent US v. Approximately 64,695 Pounds of Shark Fins.
Civil asset forfeiture proceedings starkly contrast criminal proceedings. Notably, the owner of the seized property bears the burden of proving that their property was not used in or derived from unlawful activity. There is no right to an attorney unless a primary residence is being seized and it is difficult to recover attorneys’ fees. Perhaps most shockingly, the innocence of the owner of property may not be a defense to an action against a seized item when it was used in the commission of a crime. This may apply to vehicles or real property used in the commission of a crime.
Though asset forfeiture has been used in admiralty law for most of US history, it only became frequently used on land in the 1980s. In 1984, Congress passed the Comprehensive Crime Control Act (CCCA), which expanded the circumstances in which agencies could seize property and allowed local law enforcement agencies to cede credit for a seizure to a federal agency in a process known as an “adoptive seizure.”
Many states had caps or limitations on seizure similar to those described earlier related to traffic fines when the CCCA was passed. Adoptive seizures allow federal agencies to receive the proceeds of a seizure and then return up to 80% of those proceeds to the local agency through equitable sharing agreements, thus allowing local law enforcement to effectively bypass state limitations on retaining seized assets.
The circumstances under which adoptive seizure may be used were limited by then-Attorney General Eric Holder, but these limitations were rolled back under Jeff Sessions. Merrick Garland did not attempt to reinstate these reforms during his tenure as AG and in fact called for the expansion of forfeiture regarding cryptocurrency. This should be somewhat unsurprising as Joe Biden introduced the forfeiture provisions of the CCCA in 1983 and persuaded Democrats to support them. Trump has continued his support of civil asset forfeiture in his current term, advocating for the seizure of private drones monitoring ICE or Border Patrol activity.
Many states have reformed their forfeiture procedures recently, with 17 states requiring the government bear the burden of proof, 16 requiring criminal conviction for forfeiture, and 4 abolishing civil forfeiture entirely. A series of decisions in states where equitable sharing agreements are explicitly prohibited by statute are a promising sign of progress on the issue of state law circumvention, but it is worth noting that the Supreme Court has not yet weighed in on these statutes.
Forfeiture in rural America
The interaction between civil asset forfeiture and rural America is complex and somewhat obfuscated by lack of focus on rural areas in some scholarship, and the lack of governmental transparency surrounding forfeiture. Gross forfeiture is largest in urban areas, and disproportionately affects racial minorities.
While the victims of asset forfeiture are often urban, rural police departments appear more dependent on forfeiture funds than urban ones. Studies of data from the Texas AG’s office indicate higher per capita forfeiture proceeds in rural areas. Additionally, forfeiture is focused near active highways. While data analysis on the subject is scarce, some scholars believe that part of this dynamic is driven by the tendency of rural police departments to seize the property of people travelling by highway through the area, not locals.
Welcome to Teneha Credit: Texasescapes.com (2001)
One rural community on the Texas-Louisiana border, Teneha, provides a striking example of this dynamic. The town sits on a heavily traveled highway between Houston and Louisiana, and from 2006 to 2008 the town of roughly 1000 collected over $3 million in assets from motorists through asset forfeiture. David Guillory, an attorney who filed a federal lawsuit related to these seizures noted that of the 40 motorists he managed to contact, all but one was black.
How to get away from policing for profit
Forfeiture and traffic fine abuse are symptoms of the same dual influences, declining tax bases and a history of racist policing. We have solutions available for the first issue, but they seem to often be impeded by politics influenced by the second.
Allowing departments to retain all revenue from their seizures is one of the most clear perverse incentives that I can imagine, yet states like Florida and Texas maintain such practices and seem unlikely to change them. Federal policy has deteriorated under Republicans in particular, but under Democrats as well. While there is some pushback from conservatives on asset forfeiture, this sentiment seems inconsequential in light of Trump’s full throated support for the policy.
Similarly, measures to cap or redirect traffic fine revenue are extremely effective at curbing abusive ticketing, but they are simply unpalatable to many conservative politicians. There is a strong correlation between low property taxes and high traffic citation revenue, and some politicians are quite happy to ticket out of state drivers rather than tax local homeowners.
Policing for profit is a problem that is entirely solvable, we simply need the political appetite.
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