POLITICS
06/08/2016 07:16 pm ET Updated Jun 14, 2016

Oklahoma Cops Find A New Way To Take People's Money, Even If They Don't Have Cash

A device that can access funds linked to prepaid debit cards is sparking new concerns about civil asset forfeiture.
Police in Oklahoma are now able to freeze and seize money held on prepaid cash cards.
artolympic via Getty Images
Police in Oklahoma are now able to freeze and seize money held on prepaid cash cards.

UPDATE: Jun. 14 -- The Oklahoma Department of Public Safety temporarily suspended its use of vehicle-mounted Electronic Recovery and Access to Data card readers Monday, following widespread criticism of the technology. DPS Commissioner Michael Thompson is scheduled to attend a training on the ERAD machines, after which the department will reassess their use, Oklahoma Watch reports.

PREVIOUSLY: Oklahoma police agencies are being equipped with devices that allow officers to scan prepaid debit cards and target funds linked to them for civil asset forfeiture, which allows law enforcers to permanently seize property they suspect is connected to criminal activity.

The Oklahoma Department of Public Safety has purchased Electronic Recovery and Access to Data machines for installation in Oklahoma Highway Patrol and Oklahoma City police cruisers, according to an Oklahoma Watch report published Tuesday. The device tells officers the balance of prepaid debit cards and gift cards, and allows them to seize the money if they determine it's suspicious. ERAD readers also can provide limited information about pretty much any card with a magnetic strip, including bank debit cards and credit cards.

Oklahoma has become a battleground in the debate over civil asset forfeiture reform in recent years, prompted by high-profile cases of cops using the practice to take cash and property from innocent people -- often without charging them with a crime. Thanks to the new ERAD readers, police can now access people's electronic funds as well.

Each ERAD reader is costing the state about $5,000, plus about $1,500 for training. The state has agreed to pay the manufacturer, ERAD Group, 7.7 percent of all funds forfeited with the readers. 

Law enforcement officials in Oklahoma and elsewhere describe civil asset forfeiture as an important weapon against the drug trade, allowing them to target illicit proceeds that may not be in proximity to contraband. They say ERAD technology is a necessary tool to keep up with criminals who have begun putting money on prepaid cards in order to avoid having cash seized by police.

"If someone has 300 cards taped up and hidden inside the dash of a vehicle, we’re going to check that,” Lt. John Vincent, public information officer for the Oklahoma Highway Patrol, told Oklahoma Watch.

In this scenario, the presence of the cards alone may give an officer probable cause to run each card through the ERAD reader and seize the associated funds. 

To avoid losing the money permanently, the owner would have to fight an expensive and time-consuming legal battle to prove the property wasn't connected to criminal activity. In civil forfeiture proceedings, the legal principle of “innocent until proven guilty” is effectively inverted.

A hidden stack of hundreds of cash cards may seem inherently suspicious, but critics of civil asset forfeiture say hypotheticals like this obscure concerns that the practice is overused, often in ways that violate people's due process and property rights.

"Whether someone has 100 debit cards or one, that in and of itself is not illegal," state Sen. Kyle Loveless (R), who has spearheaded an unsuccessful push to overhaul Oklahoma's civil forfeiture laws, told The Huffington Post.

Loveless said he has little confidence that ERAD readers will only be used in the most conspicuous cases.

"Law enforcement's going to say that there are good uses for it and that they use it on a limited basis, but this is deja vu all over again," he said. "We heard that last year and we've seen innocent people's stuff taken. We've seen how [law enforcement] spins it and it's just not right."

In April, police in Muskogee County drew nationwide backlash over reports that the sheriff's department had seized more than $50,000 from the manager of a Burmese Christian rock band. Police held the money -- which turned out to be donations to an orphanage and proceeds from the group's concerts -- for nearly two months before returning it due to a lack of evidence.

Elsewhere in the state, a prosecutor came under fire for using money from a forfeiture account to pay off student loan debts, and a sheriff was charged with extortion for attempting to extract cash from a motorist through civil forfeiture.

Critics say these cases underscore the problematic nature of a system that has weak protections for property owners and incentive structures that feed forfeited proceeds into law enforcement coffers. Oklahoma's deal with ERAD Group adds a twist -- giving a share of the seized assets to a private company.

Proponents of reform say civil forfeiture encourages law enforcement to seize property first and ask questions later, and to pursue activities that enrich their departments, regardless of the effect on public safety.

Loveless has introduced legislation that would require a criminal conviction before property can be forfeited in most cases, heighten the standard of proof needed to justify civil forfeiture, and shift the burden of proof onto the state, so that property owners would no longer have to prove their innocence. His proposal also includes transparency measures to track seizures and determine how forfeited money is spent. 

Law enforcement groups have lobbied hard against the legislation, calling it a gift to criminals and an unnecessary attack on their profession.

Matt Miller, senior attorney at the Institute for Justice, a libertarian public-interest law firm that believes all forfeiture should be tied to criminal proceedings, said ERAD readers may compound law enforcement abuses of civil forfeiture.

"More and more employers are going toward paying people on these debit cards, these prepaid cards ... and through this technology, you are giving police access to people's bank accounts, because there are a lot of people who no longer have a traditional bank account," Miller told HuffPost. "You have a police officer on the side of the road with this scanner who can get total access to this person's account and potentially seize it and then make them go to court and prove that it's not connected with criminal activity, and in the meantime their funds are tied up by this reader."

He added, "If the police are willing to seize $1,000 worth of cash, I think they're going to be just as likely to seize $1,000 that they find on a debit card."

Vincent, of the Highway Patrol, was quick to downplay these concerns. He told Oklahoma's News 9 that the ERAD devices so far were being used to focus on "identity theft," not seizing funds from motorists' prepaid cash cards.

Loveless said the state's lack of reporting standards makes it impossible to know how the new technology will affect civil asset forfeiture.

"There's not a record," Loveless said. "There's not a procedure in place. There's not policy in place. They don't have to report it to us if they had used it."

Loveless said police didn't discuss the ERAD machines with lawmakers before making the decision to buy them. He learned about the development after reading the report from Oklahoma Watch.

"This is another slap in the face of Oklahomans," Loveless said, pointing to a recent survey showing that an overwhelming majority of residents in the state support measures to reform civil forfeiture laws.

"At what point do we need to admit that we have a problem?"

HuffPost

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