Taking a Stand

by Rand Paul

  Now, the story of a medical intern and his impounded Rabbit certainly doesn’t compare to someone who goes to jail because they can’t afford to pay a fine. But the memory of my experience got me thinking about people who are subjected to unreasonable civil fines that can mean the difference between eating or not, or the difference between sleeping in a bed or on the street—or in a jail cell. No one should be imprisoned for debt, especially debt to the government. But it happens; it happens all the time. Right here in America.

  In recent years, Ferguson, Missouri, has been a suburban destination for African Americans longing to leave the grit of East St. Louis behind. Migration like this one is nothing new. For fifty years or more, families have moved from the big city to the suburbs looking for nicer neighborhoods, better schools, and outdoor space where their kids can play. Yes, I know that some cities have been getting more populated in recent years, in spite of the fact that rents have skyrocketed while the needle on middle-class wages hasn’t moved at all. But most of that reverse trend is made up of younger people seeking better jobs, more excitement, and more young people.1 Historically, however, a family’s move to the suburbs from the city is as much a part of American culture as Thanksgiving dinner, senior proms, and outdoor barbecues. The black population in Ferguson increased from 25 percent to 67 percent in less than twenty years.

  The distance between Ferguson, Missouri, and East St. Louis, Illinois, is only fourteen miles, but the two communities are worlds apart. Ferguson offered sprawling apartment complexes along West Florissant Avenue, the section where Michael Brown lived with his grandmother. For inner-city residents, an apartment in the complexes in southeast Ferguson was like a dream come true—at least one apartment building even came with a swimming pool.

  What made a move to Ferguson almost impossible to turn down, however, were not the amenities.

  It was the federal subsidies.

  Federal programs meant to help the poor more often than not chain people to poverty. FDR’s Agricultural Adjustment Act (and other acts that followed it in the 1930s), which spawned the Great Migration, is one example. Federally subsidized housing projects of the 1950s and ’60s, along with the welfare system, is another.

  In Ferguson, in order to qualify for a federally subsidized apartment, you could earn no more than 60 percent of the median income of the area. The government would give you an affordable apartment, but you had to stay poor to live there.2

  In the complexes, as unemployment and federal handouts proliferated, crime rose, and ultimately the apartments, once all gussied up with $12 million in federal funds, fell into disrepair. The pool was drained, doors to the apartments featured bullet holes, and people slept in beds below window level to keep out of the line of fire, according to the St. Louis Post-Dispatch.

  In time, concrete barriers and fences were erected to cordon off access to the low-income apartments. Only one road was left open to get in and out. Essentially, what was created was a separate but not really equal black section of Ferguson.

  Not only did residents of the apartments have trouble leaving their neighborhood, some of them feared just walking out of their homes. There are reported instances where some residents of Ferguson quit their jobs for fear of being arrested on the way to work because they had unpaid tickets.3 According to municipal court data obtained by the New York Times, Ferguson issued more than 1,500 warrants per 1,000 people, the highest percentage in Missouri.4

  Rabbit Redux

  There is a moment in Tom Wolfe’s novel A Man in Full that reminds me of the episode with my Rabbit and the people victimized by offender-funded justice. The real hero of Wolfe’s book is Conrad Hensley, a young married man who works in a frozen food warehouse in Oakland. Though he’s a hardworking guy, he struggles to get by. Then one day his car is towed for nonpayment of traffic tickets. He arrives five minutes before the impound lot closes, and there are five people ahead of him. At 5 P.M. the window is shut, with him still standing in line. Knowing he will lose his job if he isn’t able to drive to work over the weekend, he makes the decision to climb the fence and attempt to steal back his car. When he’s caught, he’s sent to prison, where the story begins. If you haven’t read it, I won’t ruin the book for you (if you haven’t read it, you really should; A Man in Full doesn’t get nearly the respect it deserves). Only an act of God saves Conrad.

  Many poor people in Ferguson and other neighborhoods like it live lives not much different than Conrad’s. If you exist hand to mouth, a traffic ticket or fine can spiral your life out of control. Eighty-six percent of the traffic stops in Ferguson are of black motorists. A fine for a defective windshield wiper is $143. Twenty-two percent of the people in Ferguson live under the poverty line, and most of those live in the West Florissant neighborhood. For them, $143 is lot of money, and yet it’s money from such fines that, according to Ferguson’s financial statements, funds a fifth of the town’s budget—that’s $2.5 million in municipal court revenue.5 According to the New York Times, a Ferguson city finance officer asked the police chief if he could “deliver” a 10 percent increase in revenue from tickets to cover an increase in court costs. The chief reportedly said that he would try.6

  Most of us have run into offender-funded justice. Maybe it’s the speeding ticket you received at the end of the month to fill some kind of quota or the penalty you pay for filing your taxes late. I once got a $770 speeding ticket in Atlanta. They doubled their normal extortion because construction was allegedly occurring, though no workers were within miles of my driving. For me $770 is a big deal, but I can’t imagine what it must be like for someone struggling to make ends meet. For many of the people reading this book, offender-funded justice doesn’t materially affect their life, but for some, fines can make the difference between living on the edge or being pushed to a point of no return.

  The primary purpose of offender-funded justice is simply revenue, and most of the time it’s revenue that is collected from those who can least afford it. Consider Camden, New Jersey, one of the poorest cities in the country—unemployment is double the national rate, and 40 percent of the people live below the poverty line. In Camden, fines for loitering reach upward of $1,000.7 According to a survey conducted by National Public Radio,8 forty-three states charge the accused for some of the costs of a public defender. Some states charge for electronic monitoring bracelets; some venues even charge for jury trials, rights guaranteed to be free of cost by the Constitution.

  What’s worse, people are put in jail for nonpayment of these fines.

  NPR tells the story of Steve Papa, who was arrested for “climbing up on the roof of an abandoned building while intoxicated.” Later, a judge would sentence Papa to twenty-two days in jail, not for trying to break into the building but because he couldn’t pay the fine. Papa was an Iraq War veteran and was homeless.

  Fine-collection companies have sprung up all over the country. These companies operate with little oversight and practically no transparency. Every year, courts in the United States sentence hundreds of thousands of people convicted of misdemeanors to probation that is handled by these firms who then charge fees to the probationers. You don’t have the money to pay? Guess what happens? Right, you go to jail.

  According to Human Rights Watch, one Georgia man was arrested for shoplifting a $2 can of beer. He was fined $200, and ultimately went to jail for failing to pay the private collection company $1,000 in fees. At the time, the man was homeless and selling his blood twice a week to survive.9

  In Clanton, Alabama, city officials are running what amounts to a debtor’s prison, according to the Feds.10 Poor people arrested for misdemeanors are jailed for up to a week, or until they can come up with the $500 fine.

  These violations of civil liberties do not operate in the shadow but rather in full view of the Feds.

  According to an editorial in the New York Times, the Justice Department is currently monitoring fourteen police departments around the country “with the aim of making sure that police o
perations under its guidance obey the Constitution.” A recent report released by the DOJ accused Ferguson cops of unfairly targeting African Americans with traffic stops and excessive force. According to statistics compiled by the Ferguson PD, black drivers were twice as likely as whites to be stopped, searched, and arrested, even though statistically less likely to be carrying contraband.11

  So on one hand, the DOJ condones the practice of offender-funded justice, or at least looks the other way, and on the other hand they investigate it and condemn it—especially when the community is under a media glare.

  The hypocrisy is breathtaking.

  Government overreach is like Doc Ock from the Spider-Man movie. It has its mechanical tentacles that reach into just about every facet of our lives—and a zealous disregard for the Second Amendment.

  Take the case of twenty-seven-year-old Shaneen Allen. A single mom with two kids, she was robbed twice last year. A family member suggested she obtain a gun for self-defense. She just wanted to protect her family. She took the required gun safety course and obtained a concealed carry permit.

  Unfortunately, Shaneen’s permit was obtained in Pennsylvania, and one day while driving in New Jersey she was pulled over for what the police called an “unsafe lane change” but is commonly referred to in African American communities as a “driving while black” citation.

  They asked her if she had a gun and she told the truth. That was a big mistake. Now she’s facing a mandatory minimum of three years in jail.

  Then there’s Edward Young, who received a mandatory fifteen-year prison sentence when cops found that he had seven shotgun shells in a drawer. Never mind that he didn’t even have a shotgun to fire the shells or that the shells were only in his house because he was helping a neighbor sell her late husband’s possessions. Young had no idea that his felony conviction from twenty years earlier made it illegal for him to own ammunition. The Sixth Circuit just turned down his appeal.

  Government tentacles also reach into the pockets of the poor, and I find that despicable and inexcusable. The policy of offender-funded justice is by its definition predatory. Like most predators, it targets the vulnerable. But Doc Ock cares little about the Constitution. All it cares about is feeding its ever-expanding appetite.

  Civil Asset Forfeiture

  Say your name is James, and one day you’re driving to see a dentist. Because you work at a food processing plant that doesn’t offer a dental plan you have to pay cash for the procedure. You have $3,900 of hard-earned money in the glove compartment. All of a sudden, you see flashing lights in your rearview mirror. The police officer says he pulled you over for driving too close to the white line. He then asks if you’ve been smoking marijuana; he says he smells it in your car. The cop asks you to step out so he can search the vehicle. He opens the glove compartment and sees the money. He confiscates your cash, impounds your car, and you get to spend a night in jail.

  When you protest, the cop says, “Don’t even bother getting a lawyer, the money always stays here.”

  Each year, federal and local law enforcement agencies team up to confiscate billions of dollars from people they suspect of criminal behavior. You don’t have to be convicted of a crime to lose your property. The government can take your truck, your house, and your cash even if they never charge you or even if you are found innocent.

  Instead of innocent until proven guilty, you can be treated as though you’re guilty even if found innocent. The statute, called “civil asset forfeiture,” might be the most egregious government overreach on the books today.

  James is a real person. His full name is James Morrow, and the event happened in Tenaha, Texas. It was recounted not too long ago in a long piece about civil asset forfeiture that ran in The New Yorker magazine.12

  James is only one of a countless number of victims of a law whose primary purpose is to collect revenue. The word “forfeiture” here is used in the legal sense, meaning that you’re not giving up your property. It’s being taken by the government without compensation, and without due process of law. Only the inference of criminal behavior is necessary.

  Like much of government’s overreach—and the road to hell—good intentions paved the way to today’s version of civil asset forfeiture. The idea was to take money from drug dealers and put it directly into the fight against crime. Some of it is applied as the law intended. In Connecticut, for instance, police use the confiscated cash to buy undercover vehicles, laptops for patrol cars, and police dogs.13 Cops in Tulsa roll up on you in a Cadillac Escalade with the words “This Used to Be a Drug Dealer’s Car, Now It’s Ours!” pasted on the back window.14 This policy has gone way too far. Some of the military-style equipment you saw in Ferguson was paid for, at a drastically discounted price, by civil asset forfeiture. The town of Spring Grove, Illinois, population 5,800 last year, purchased a twenty-ton mine-resistant ambush protected (MRAP) vehicle from the government for $4,000 with civil asset forfeiture funds.

  There is little oversight of civil asset forfeiture, and much of the confiscated cash and property finds its way into places and pockets where it should not reside.

  Here’s a little history of the law. The statute can be traced back to English common law, which stated that the Crown had the right to confiscate an object that caused a death. That object, called a deodand, the Latin word for “given to God,” could then be sold and the proceeds given to the needy or some other good cause.15

  After the American Revolution, the fledgling U.S. Congress authorized something that was akin to a deodand but was even more expansive. It gave the government power to appropriate vessels and cargo that were suspected of being used by smugglers or pirates. The legal term is in rem, and it refers to the power a court may exercise over property. This way, it didn’t matter if the pirate who owned the ship was on board or not. If the vessel was being used for illegal activity, or was thought to be, the government had the right to take it.

  In time, the practice of pirating, at least that of the Captain Kidd variety, faded to lore and literature.

  But the forfeiture law stayed on the books.

  Civil asset forfeiture was resurrected in the 1970s and retooled for the war on drugs. The subtle shift in the law from Colonial days was the presumption by the government that the property or cash seized did not belong to the person from whom it was appropriated but were ill-gotten gains. This way, ownership claims did not apply. Still, if the law had any effect on stemming the tide of drugs flowing into the United States, it did so mostly on a public relations level. How many times on television have you seen news stories about high-profile drug busts with police proudly displaying stacks of confiscated cash and bundles of cocaine or heroine? Though they looked pretty impressive, such seizures really did little to stop the proliferation of drug smuggling or use.

  In 1984, Congress passed the Comprehensive Crime Control Act, and the practice of civil asset forfeiture changed dramatically. The pumped-up version works like this: local cops determine the illegal activity, then make a quick call to the Department of Justice, which “federalizes” the case. This allows both the Feds and the local cops to sidestep any pesky state laws that might impede them. The local police then seize the money or property, turn it over to the Feds, who take 20 percent off the top (like an agent’s fee), and then kick back up to 80 percent to the local police department.

  Equitable sharing would change the face of small police departments for the next thirty years.

  Here is an example of equitable sharing at work. Russell Caswell was the owner of the Motel Caswell in Tewksbury, Massachusetts. A suburb of Boston, Tewksbury, like most working-class towns with high unemployment, had seen better times. So too had Mr. Caswell’s motel, which was built by his father in 1955. Russell remembers sitting on a bulldozer at age eleven helping his dad clear the plot of land on Main Street, just off Interstate 495. Not too long after the motel was completed, Annette Funicello and the Mouseketeers stayed there during an early tour, which was a big thing back then
. More recently, however, the motel’s patrons consisted of people down on their luck, pensioners, and, no doubt, the occasional lovers’ tryst—some of the rooms came with a hot tub, after all.

  Still, Russell and his wife showed up each day for work and, in time, were able to pay off the note on the building and have some equity for a retirement that was fast approaching. Though property values in Tewksbury weren’t exactly at Manhattan levels, the motel was estimated to be worth $1.5 million.

  One day Russell received notice that the Tewksbury Police Department—in concert with the Department of Justice—was seizing his motel for illegal drug-related activity. The government cited fifteen drug busts over a fourteen-year period, during which time Russell had rented rooms to almost 200,000 guests. “A local paper found big-box stores down the road had more drug activity than my motel,” Russell wrote in a letter published by the Washington Times.16

  There is little doubt that the motor lodge, being debt-free, was of more interest to law enforcement than any criminal activity that might have occurred there. In fact, according to Russell, a DEA agent would later testify that it was his job to scour the register of deeds looking for unfettered properties.17

  Though he had not committed a crime, Russell shelled out $100,000 in lawyers’ fees in the hope of stopping the federal government from taking his motel. He was fighting a legal battle that most in his situation lose. Many can’t afford the legal fees that pile up to fight civil asset forfeitures. Those who do have the money face a law that favors the government.