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Outside the Asylum: chapter five of an epic essay in praise of New Zealand

We continue serialising an epic essay from the New Zealand Initiative’s Eric Crampton, exploring what life is like in and out of New Zealand. Today: chapter five, on policing. Read chapters one and two here and chapters three and four here.

Chapter 5: Policing

“So are you going to come quietly,” shouted one of the cops again, “or are you going to let us blast you out?”

“Which would you prefer?” shouted Ford.

A millisecond later the air about them started to fry again, as bolt after bolt of Kill-O-Zap hurled itself into the computer bank in front of them.

New Zealand’s housing shortage is the logical outcome of a mad system. Growing councils bear the hassles of growth, such as dealing with residents who hate change and figuring out how to fund faster roll-out of infrastructure, but see little of the benefits. Central government, meanwhile, enjoys the increased income tax, company tax, and GST that comes with growth.

Housing shortages, and ongoing friction between central and local government, are inevitable. The great social scientist Ice-T reminds us never to hate the player, only the game. Rather than blame local government for responding to incentives, we should change the game.

Now consider the incentives facing police in America and how they lead to the unnecessary death of Sal Culosi – and many others. Police departments there are funded, in part, from the sale of seized assets: cash, cars and homes.

Fair enough, if police were seizing the proceeds of crime after a conviction to fund victim compensation. If a fraudster bilked seniors of their savings and bought a house with the money, selling that house might go some way towards setting things right. The logic is understandable: making sure that crime does not pay, by seizing the proceeds of a convicted criminal’s illegal activities, can be an effective deterrent.

But the system distorts police incentives when police benefit directly from asset forfeiture. Solving a mugging or a murder might help the local police department’s clearance rate, but busting a drug dealer, or an illegal gambling operation can boost the department’s budget. Time and effort are shifted to crimes that are profit-centres for the local police.

It gets worse when police seize assets without convicting anyone of anything.

Under US civil asset forfeiture rules, police can seize property they suspect to be the proceeds of crime. It is up to the property owner to sue for the return of the property.

The origins of the rule are suitably mad: centuries-old Admiralty Law. If all the pirates on a ship were arrested, the ship’s owner could simply re-crew and sail off – and be difficult to find to boot. So the law let the government seize the ship and require the owner to prove its innocence to get it back.

Fast forward from the 17th century to the 20th century, when US police departments started finding it profitable to routinely seize cash. Travellers from out-of-state zipping along interstate highways proved lucrative targets: travelling back for several court appearances, spread over months and years, to recoup seized assets was a deterrent if the amount seized was small. Investigative journalist Radley Balko described the more lucrative parts of the interstate as “forfeiture corridors”.

Balko also reported on asset seizure in Cook County, Illinois, where police made more than 23,000 seizures from 2012 to 2017: three-quarters of all seizures involved cash, not property, and the median amount seized was just under $1,500. The legal costs of fighting a seizure exceeded the value of the property, and the poorer neighbourhoods targeted had little political heft.

But not all seizures are small. Police in the City of Philadelphia seized nearly 1,200 homes from 2002 to 2012. Having a teenager selling a small amount of marijuana in the front yard could have the family home seized under civil asset forfeiture rules.

Although some states enacted legislation to reform police incentives, federal legislation allows local police to help federal investigation – and funds seized as part of those investigations are shared with the local police under ‘equitable sharing’ rules. The Institute for Justice’s report on asset forfeiture tallies annual federal forfeiture revenues rising from under $500 million per year to more than $5 billion in 2014. National Review, a conservative publication, noted that the collections have helped fuel police militarisation: departments use the money to purchase “armored personnel carriers, automatic weapons, and sniper gear.”

The combination of heavily armed police and the incentives inherent in asset forfeiture is lethal. Just down the road from where I went to graduate school in Fairfax Virginia, optometrist Sal Culosi was shot dead by a SWAT team when he answered his door.

Culosi liked to bet on American football. An undercover agent encouraged Culosi to raise the stakes, betting more than $2,000 in a single day, so Culosi could be charged with running a gambling operation.

The SWAT team came to make the arrest, and Detective Deval Bullock shot and killed Culosi. The police eventually settled, paying Culosi’s family $2 million. Bullock was never chargedIn Fairfax County, police can keep all the assets seized in state gambling cases; for other cases, they must share. So Fairfax Police prioritised gambling cases likely to lead to seizures.

Balko contrasts SWAT strategies – no-knock drug raids in the middle of the night – with Winston Churchill’s (possibly apocryphal) quip, “Democracy means that when there’s a knock on the door at 3 a.m., it’s probably the milkman.” Culosi’s case attracted a reasonable amount of media attention, partly because people don’t expect peaceful, unarmed, middle-aged optometrists to be shot and killed by police for answering the door.

But police in America shoot and kill people all the time: 991 in 2015 and 963 in 2016; 2017 is on track to match those figures. Police officers are rarely charged; those charged are rarely convicted. While crime dramas feature situations where the best course of action for police really is using deadly force, they rarely feature cases like Culosi’s. Or Brian Claunch: a double-amputee, in a wheelchair, in a group home for the mentally ill, shot in the head by police because they found his pen threatening.

If the instructions on the side of a packet of toothpicks (see chapter one) are a sign of a civilisation gone mad, what should we think about American policing?

New Zealand has so far remained outside of the American policing asylum. From 1941 to 2015, police in New Zealand shot and killed 29 people. Adjusting for population size, police here take about 37 years to kill as many people as American police kill every year.

This is largely due to New Zealand’s unarmed constabulary. When police do not have immediate access to firearms in situations they view as threatening, they must use other methods while seeking armed assistance – if it is necessary.

Policing in New Zealand is, all things considered, safe – even without firearms. Auckland University of Technology criminologist John Buttle tallied the figures for 2008–09, a high point in assaults against police. He found police reported being assaulted 2,481 times that year – out of 1,221,823 incidents attended by police. In the 123 years from 1886 to 2009, 29 officers were killed by a criminal act in the line of duty.

If loss of life at work is a measure of how dangerous an occupation is, then policing comes quite far down the list of hazardous jobs. This raises the distinct possibility that it is more dangerous being a farmer than it is a police officer.

Farmers do not carry sidearms to guard against enraged livestock.

And just as New Zealand avoided knee-jerk responses to an attempted airplane hijacking (see chapter four), it has also avoided knee-jerk responses to the rare and tragic cases in which police are shot at work.

Police Commissioner Mike Bush:

The death of Senior Constable Len Snee was deeply felt by police officers of all ranks, all over the country. Our data on risk has been improved under my watch and it shows police frequently deal with people with weapons.

In Len’s case, the weapon was a gun. This has, quite rightly, led to public discussion about whether all field officers should be routinely armed. The majority of commentators say ‘no.’ That is in line with the public feedback Police received when we consulted on the Policing Act 2008; it’s also in line with the sentiments of police officers themselves.

Being unarmed is a unique and cherished feature of the policing style adopted by New Zealand Police – a style for which we are held in high regard internationally. Routine arming of the police would not erase this style of policing, but it would make the job of being a community police officer considerably more difficult…

So our strategies rely on officers’ good judgment. They are trained to identify risk and if they encounter an armed situation, to withdraw, cordon and contain until appropriately armed officers can be deployed. If the situation is equivocal, they have arms at ready resort with which to equip themselves.

This tactic has worked very well for over 40 years.

International evidence gives me no cause to think it is outdated. Literature on police experience and practice points to a high risk that officers can have their own weapons turned against them, having been overpowered in otherwise innocent situations.

There is also concern about the number of officers shot because they didn’t want to fire their weapons. People tend to join the New Zealand Police because they want to help people, not shoot them. [Emphasis added]

But the Asylum door has crept open, just a little.

In 2009, National passed the Criminal Proceeds (Recovery) Act. Where the Proceeds of Crime Act 1991 required a criminal conviction before asset seizure, the new Act requires a High Court order.

In criminal cases, guilt must be proved beyond reasonable doubt. Both the old and new Acts allow seizure after conviction. Police recently sought to seize a $1.2 million Kaitaia backpackers owned by Michael Harris, convicted in 2017 of stupefying and indecently assaulting guests.

It is a stretch to view Harris’s backpackers as the proceeds of crime, but it would have counted as tainted property under the old Act and as property used to commit or facilitate an offence under the new Act. At least, this forfeiture proceeding is subsequent to conviction.

Forfeitures under the new Act require only the High Court be satisfied that, on balance of probabilities, the property is tainted. Recovered funds go into a pool administered by the Ministry of Business, Innovation and Employment. Police, and other agencies, can apply to use the funds for crime prevention projects. In 2014, the Police Association’s newsletter noted:

One thing that is clear, however, is that the demand for asset recovery investigations is increasing, especially from other government departments, such as the Ministry for Primary Industries, Customs, the Serious Fraud Office and ACC, as awareness of the units’ work grows.

In December 2015, the New Zealand Herald reported that $326 million in “drug-funded assets” had been seized under the 2009 Act in the past five years. Seizures grew from $22 million in 2010 to $93 million in 2015. The burden of proof lies on the owner of the seized asset to prove it was not tainted, and they often find it makes more sense to settle.

Outside criminal cases, the asset recovery unit is increasingly making settlements with property owners over forfeiture orders, [Detective Senior Sergeant Craig] Hamilton said. Forfeiture cases are determined on the civil level of proof, rather than the higher criminal threshold of evidence beyond reasonable doubt.

“People will come to us and look at a settlement – that is occurring more frequently. They will look at it pragmatically and say, yes, I can spend a lot of money fighting this and come second or engage with police and settle,” Hamilton said.

Incentives in New Zealand are not nearly as perverse as in America. Police here do not directly profit from asset seizures. But they can apply to the pool of funds established by seizures. In 2016, Prime Minister John Key gave millions to anti-meth efforts from seized assets.

If the seized proceeds of crime are not used to compensate victims, those proceeds should be part of general government revenues. If police drug enforcement activities become self-financing because of asset forfeiture, police attention may plausibly shift towards drug crime – at the expense of less profitable lines of policing.

Although New Zealand’s police do not usually carry firearms, taser use has reflected poorly on them. Greg McPeake, a suicidal and morbidly obese man, was tasered by police in 2015 while trying to follow police instructions to get out of his small vehicle, then set upon by two police dogs. He died of the overdose of pills he had taken before the police showed up to help.

Mark Scott’s report for North & South magazine reads far more like an American case of excessive police force than something that could or should happen here in New Zealand.

At least, on this side of the Asylum wall, the police do not carry firearms.

The next time the Police Association demands New Zealand’s police be armed, don’t fall prey to the Dagg Effect. We are lucky to be one of the few countries with an unarmed constabulary.


If you’d prefer – listen to the chapter below.

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