Don’t Let Crime Fears Undermine Americans’ Rights

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Whenever the nation faces a safety threat—e.g., a high-profile shooting, a wave of smash-and-grab robberies or an act of terrorism—the public clamors for action, and politicians and police agencies respond with proposals to increase their power.

The new laws, however, always have disturbing unintended consequences that stay with us for decades—and they often fail to protect us from the threats that led to their creation.

In a democracy, criminal justice policy is understandably driven by public perceptions. After violent crime rates soared in the late 1980s and early 1990s, California voters in 1994 overwhelmingly approved the nation’s toughest three-strikes-and-you’re-out law. Myriad factors contribute to crime fluctuations. And policy often lags the data given the time it can take to pass laws or initiatives—thus making it tough to see what works even in hindsight.

In 2005, the Legislative Analyst’s Office analyzed crime statistics and found crime began falling precipitously before “three strikes” went into effect—and tracked national trends. In recent years, legislators and voters reacted to soaring incarceration rates. Just as fear of crime led to tougher laws, stories of resulting injustices (a man whose third strike was stealing pizza) and police abuses led to a flurry of criminal justice reforms.

Now that crime rates have moved upward—and fear of it at the highest level in years—policymakers are headed back in that 1990s direction. This is true even in our state’s most progressive cities. For instance, San Francisco Mayor London Breed introduced a new police-union-backed measure for the March ballot that would make it easier for police to use surveillance and reduce their requirements to document when they use force on suspects.

It’s enough to make one’s head spin. Sadly, crime policy is not driven by policy wonks who carefully analyze the data and try to strike the right balance between public safety and individual rights. It’s driven by progressive ideologues (check out the goings-on in the Assembly Public Safety Committee if you don’t believe me) on one side and powerful interest groups (police agencies and unions) on the other. Lawmakers react to those groups and public sentiment.

I am concerned about the crime wave. I’m also concerned about over-incarceration and over-policing. I also am skeptical that our governments—which seem incapable of doing anything competently, justly, and cost-effectively—can strike the right balance. I offer no easy solution or specific policy prescription, but I do offer a warning: Be careful what new laws we pass. They can take decades to undo—and can obliterate our rights in the process.

This column is prompted by a report in Reason magazine about Oklahoma Gov. Kevin Stitt’s recent remarks in his State of the State address calling for reform of civil asset-forfeiture laws: “It’s crazy to me that somebody can be pulled over and have their cash and truck taken for an alleged crime, get acquitted of that crime, but they still never get their property back.” There are plenty of news stories over the years of outrageous police takings.

California has better asset-forfeiture protections than Oklahoma, but they still aren’t very good— – and California police agencies work around our state’s limitations by partnering with a federal agency. The feds operate under much looser standards. We’ve seen a variety of abuses in California in recent years, whereby law enforcement misuse forfeiture laws concocted to stop drug cartels to take innocent people’s life savings and pad police budgets.

We’ve fortunately seen pushback by the courts. The U.S. 9th Circuit Court of Appeals in January overturned a lower court decision siding with the FBI, after it tried to take $85 million in assets from safe deposit boxes following a Beverly Hills raid on a company that rented them. The Drug Enforcement Agency claimed the company’s boxes facilitated money laundering, so they plotted to take and sell the contents from everyone’s boxes—even though the vaults are also used by law-abiding citizens for legitimate reasons.

That’s an obvious constitutional violation. It’s as if the government decided there’s drug dealing going on somewhere in my neighborhood. Instead of proving criminal activity by individuals, they just rounded up everybody’s stuff. Police agencies have a strong incentive to use these laws because they generally keep the ill-gotten bounty. Police aren’t supposed to use that money to supplant their budgets, anyway.

For a refresher, asset forfeiture was concocted during the Reagan-era anti-drug panic. As two former heads of the US. Justice Department’s asset-forfeiture program wrote in a 2014 Washington Post column, it “was conceived as a way to cut into the profit motive that fueled rampant drug trafficking” but “has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.”

I understand the latest fear of crime, but let’s take a careful and deliberate approach—lest innocent people lose their rights and property in the process.

This column was first published in The Orange County Register.

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