Civil Asset Forfeiture: Unfair, Unjust, Un-American

Civil Asset Forfeiture: Unfair, Unjust, Un-American

Founding Father George Mason once said, “When the same man, or set of men, holds the sword and the purse, there is an end of liberty.” Mason, along with many other founders of the United States of America, believed strongly in the separation of government powers. These men knew firsthand the potential for abuse and oppression that exists when a single governing authority has both the means to take property from citizens and the incentive to do so.

The development of civil asset forfeiture in modern America is likely causing George Mason to turn over in his grave. Law enforcement authorities at both the state and federal levels use civil proceedings to forfeit assets seized from private citizens allegedly involved in a crime, sometimes without even filing any criminal charges, and then keep the forfeited assets for themselves. This creates a powerful incentive for police agencies to seize whatever property they can get their hands on, which leads to abusive and liberty-threatening policies and practices. Mason was right, and what he observed is taking place all across the country.

Civil asset forfeiture has been around since medieval times. According to the Institute for Justice (“IJ”), a civil liberties law firm that advocates for asset forfeiture reform, it arose from deodand, an 11th-century superstition that held that objects could act independently to cause death—and also be held responsible by governing authorities. Under the common law, if a person’s property, such as a horse, caused death or injury, it or its equivalent value was forfeit to the Crown.

The founders did not believe in this superstition, but they did use civil asset forfeiture in order to punish the owners of smuggling ships—who were often not on the ships themselves—by confiscating and selling their ships and cargo in order to collect customs revenue.

But it wasn’t until the mid-1980s that civil asset forfeiture took on a life of its own in the U.S. That’s when Congress established the Assets Forfeiture Fund, which allowed federal agencies to keep proceeds from seized assets. Wanting to get in on the action, the states quickly followed Congress’ lead and established programs that incentivized law enforcement agencies to use the civil asset forfeiture apparatus to enrich themselves.

Incentives work, and in the case of civil asset forfeiture, the proof is in the pudding. According to IJ, in the first year of its existence, the DOJ’s Assets Forfeiture Fund took in $93.7 million in deposits. By 2014, the fund took in an astonishing $4.5 billion—an increase of 4,667 percent. Adding the money deposited in the Treasury Department’s forfeiture fund, almost $29 billion was taken by the federal government in this manner between 2001 and 2014.

Civil asset forfeiture provides law enforcement bodies the opportunity to fund themselves without worrying about democratically-elected legislative bodies. It is also very easy to use. In most jurisdictions, all the police need is probable cause to believe that property, including cash, cars, and homes, is connected to criminal activity in order to seize it. No criminal charges are necessary. Once the property is taken, it is usually up to the owner to prove a negative—that the property is “innocent.” This requires attending civil forfeiture hearings where the deck is stacked against the actual owner of the property. In cases with very strange names—like United States v. One Solid Gold Object in Form of a Rooster—the government’s burden of proof is low, and property owners have few rights.

In addition to the difficulty of proving that an asset was not associated with criminal activity, the cost associated with fighting a civil asset forfeiture proceeding is often higher than the value of the asset seized, which results in strong incentives for the government to seize assets and disincentive for property owners to challenge seizures. Analysis of data from 10 states by IJ revealed a median value of seized property that ranged from $451 in Minnesota to $2,048 in Utah. Hiring an attorney to litigate an asset forfeiture case typically costs thousands of dollars. Economic theory holds that a reasonable person would not spend thousands in order to recover hundreds, and this is true with civil asset forfeiture. The entire system is rigged against property owners.

The incentive for law enforcement to use its authority to take assets that it can then keep has sparked media reports that could rightfully be filed under “police gone wild.” Attorney David French, who is a senior fellow at the National Review Institute, referred to civil asset forfeiture as “a gigantic law-enforcement scam.” French offered an eyebrow-raising fact: In 2014, the government took in more civil asset forfeiture money than actual burglars stole from their victims nationwide. With civil asset forfeiture, it’s getting harder and harder to distinguish between cops and robbers.

Thus far, civil asset forfeiture programs have survived most reform efforts, as well as legal and constitutional scrutiny by the judicial system. In the 1996 case of Bennis v. Michigan, 516 U.S. 442 (1996), the U.S. Supreme Court upheld the seizure and forfeiture of a wife’s car after her husband used it to solicit a prostitute. The Benniscase caused an uproar, and Congress passed the toothless Civil Asset Forfeiture Reform Act in 2000. The only federal reform action since the passage of CAFRA was the 2015 directive of then-Attorney General Eric Holder, which halted the use of a part of the federal “equitable sharing” program. Analysis by IJ revealed that Holder’s change did little to stem the tide of forfeitures. And Attorney General Jeff Sessions has already reversed Holder’s directive.

Some states have taken the lead in passing much-needed sensible reforms. IJ reports that three states—North Carolina, New Mexico, and Nebraska—have abolished civil asset forfeiture entirely. Limited reforms are underway in other states. But the federal government, under the guidance of President Donald Trump, is going backward.

Federal Forfeiture: There is Nothing Equitable About “Equitable Sharing”

The creation of the federal Assets Forfeiture Fund gave rise to the concept of federal equitable sharing. Through this program, state and local law enforcement agencies can access the federal government’s civil asset forfeiture system. In exchange, the United States keeps 20 percent of the forfeited asset, returning 80 percent to the referring agency.

Equitable sharing takes two forms. In the less popular method, the state or local agency turns over seized property to the federal government, which then “adopts” it for forfeiture if the “conduct giving rise to the seizure is in violation of federal law and where federal law provides for forfeiture.” The more frequently used method allows the federal government to forfeit property seized by local and state agencies that are part of a federal “joint task force.”

The equitable sharing program has been enormously popular. According to IJ analysis of relevant data, the DOJ’s equitable sharing program brought in $4.7 billion for state and local agencies between 2000 and 2013. The Treasury Department’s equitable sharing program generated $1.1 billion for state and local agencies in the same timeframe.

Civil asset forfeiture is also popular with federal agencies themselves. A recent DOJ inspector general’s report found that the federal government took in nearly $28 billion in forfeiture proceeds over the last decade. The law that allows such enormous amounts of money to be taken from citizens by federal agencies earned the federal government a D- in the Institute for Justice report Policing for Profit: The Abuse of Civil Asset Forfeiture (2nd edition, 2015).

According to the IJ report, the federal government’s civil asset forfeiture laws “set[] a terrible example that, unfortunately, many states have followed.” When the federal government sues to forfeit seized property, it must only show by a preponderance of the evidence—essentially a 51 percent likelihood—that the property was connected to a crime. Moreover, an innocent third-party owner of seized property bears the significant burden of proving that they had no involvement in the alleged wrongdoing. And “worst of all,” according to the IJ report, 100 percent of forfeiture proceeds go to federal law enforcement agencies, creating a stark and perverse incentive for federal agents to seize property whenever possible.

So it is no surprise that 87 percent of all DOJ asset forfeitures from 1997 to 2013 were civil forfeitures. And in 88 percent of those cases, the forfeiture was handled “administratively,” which means the property owner failed to challenge the seizure, and no proof was required from the government.

The Department of Justice inspector general’s report raised concerns about whether the federal government’s civil asset forfeiture program passed the proverbial smell test. “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than an investigation or prosecution,” the report stated.

Bad publicity such as this, along with the advocacy efforts of groups like the Institute for Justice, led former Attorney General Eric Holder to eliminate the use of “adoptive” forfeitures as part of the federal government’s equitable sharing program. Holder’s reforms left untouched joint task force forfeitures, however, which according to IJ data, made up 73 percent of all such seizures from 2000 to 2013.

Attorney General Jeff Sessions wasted little time in undoing Holder’s limited reforms. When he announced the return of adoptive forfeitures for everyone, Sessions described civil asset forfeiture as a “key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed.” He added, “President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that.” “We will continue to encourage civil-asset forfeiture whenever appropriate in order to hit organized crime in the wallet.”

Polls indicate that at least 80 percent of Americans oppose forfeiture practices like those long used by the federal government and championed by Sessions. And Supreme Court Justice Clarence Thomas has recently signaled that civil asset forfeiture may not be as lawful as Jeff Sessions believes.

“This system—where police can seize property with limited judicial authority and retain it for their own use—has led to egregious and well-chronicled abuses,” wrote Justice Thomas in a judicial opinion. “According to one nationally publicized report, for example, the police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights.

“In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money. He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.” Again, with civil asset forfeiture, it’s hard to tell the good guys from the bad.

Some members of Congress have taken action to rein in federal civil asset forfeiture. The House of Representatives overwhelmingly passed an amendment to the Make America Secure and Prosperous Appropriations Act that would use congressional purse strings to roll back Sessions’ elimination of the Holder reforms to equitable sharing. The amendment had broad bipartisan support, including from Rep. Don Beyer (D-VA), who said that unchecked civil asset forfeiture poses a danger to democracy.

“Civil asset forfeiture without limits presents one of the strongest threats to our civil, property, and constitutional rights,” said Beyer in comments made on the House floor. “It creates a perverse incentive to seek profits over justice.”

Senator Rand Paul (R-KY) and Rep. Tim Walberg (R-MI) have gone further with the introduction of the Fifth Amendment Integrity Restoration Act, which the IJ supports. The FAIR Act would bar the DOJ from retaining civil asset forfeiture proceeds, abolish the equitable sharing program, shift the burden of proof for criminal activity from the property owner to the government, raise the standard of proof in federal civil asset forfeiture proceedings to “clear and convincing,” and provide legal representation to indigent defendants facing civil asset forfeiture proceedings.

Significant reforms such as those proposed in the FAIR Act would go far to eliminate much of what makes civil asset forfeiture an undemocratic and unjust program. But many reformers believe that the only way to reform civil asset forfeiture is to jettison it completely. “It’s a big-government scheme to take people’s property without due process,” claimed Rep. Justin Amash (R-MI) in a tweet. “End it.”

Highway Robbery: Civil Asset Forfeiture in the States

The same problems that plague federal civil asset forfeiture programs are found in the states. Laws across the land allow government actors to take a person’s property on nothing more than a vague suspicion of criminal activity. In many jurisdictions, criminal convictions are not required prior to seizure and forfeiture. Indeed, criminal charges often aren’t even required. Once property is seized, citizens must navigate an intentionally byzantine bureaucratic maze in order to get it back. And in many jurisdictions, law enforcement agencies get to keep what they take for themselves.

Getting a grasp on the state of civil asset forfeiture across the country is no easy task. The laws in every jurisdiction are different. More importantly, states tend to provide very little easily accessible data on civil asset forfeiture. What is available can often only be obtained through a public records request. Even then, making sense of the data may require the services of an expert.

In an effort to get a handle on the current state of civil asset forfeiture affairs nationwide, the Institute for Justice expended the time and resources to gather the available data and provided the expertise in order to make sense of it. Policing for Profit, the resulting report, provides a comprehensive breakdown of each state’s civil asset forfeiture regime and assigns each state a letter grade representing how well (or more often, not well) the state protects its citizens’ property from overzealous law enforcement agencies.

The IJ found only 14 states for which forfeiture revenues over an extended time were available. The data indicates that civil asset forfeiture has gained in popularity among the states. According to the report, forfeiture revenues in these states more than doubled from 2002 to 2014. And in 2012 alone, 26 states and the District of Columbia took in a combined $354 million in forfeiture proceeds. Texas led the way with $46 million, followed by Arizona with $43 million, and Illinois with $20 million.

Michigan brought in a little less in 2012 but still earned a D-, one of the worst grades in the country. From 2001 to 2013, the Great Lakes state cleared almost $245 million in forfeiture proceeds, an average of over $18 million per year. The IJ reports that in Michigan, law enforcement keeps up to 100 percent of forfeiture proceeds, which incentivizes police statewide to seize assets in order to fill their coffers. A 2015 reform did manage to raise the standard of proof required in civil forfeiture cases: The government must now show by clear and convincing evidence, rather than by a preponderance of the evidence, that seized property was involved in a crime. But that reform did not alter the ease with which law enforcement authorities in Michigan can seize property in the first place. Remember, the standard of proof is only implicated if the seizure is challenged.

David Barnes learned this the hard way. In November 2014, Barnes was raided by Michigan police, who seized his bank account, his two SUVs, and his children’s Christmas presents. The authorities also shut down three businesses owned by Barnes. Prosecutors alleged that Barnes, who used medical marijuana, was operating a drug distribution scheme. But the only charge brought against him was eventually tossed by a judge.

Despite the lack of charges, the authorities refused to return the $10,938 seized from Barnes’ bank account, which he held jointly with his mother. According to the Detroit Free Press, a judge ordered prosecutors to unfreeze the account, but it took 22 months and, according to Barnes, over $100,000 in legal fees to get the money back. Barnes’ plight clearly illustrates why so few people who have their property seized, even entirely inappropriately, attempt to get it back. Agencies seizing the property know this.

Oakland County Circuit Judge Rae Lee Chabot rightfully excoriated the government at a 2017 hearing on the matter. “I’m outraged by the way this was handled,” Chabot said. “This hints at more than just a mistake. This continuous action hints at obstruction.” Judge Chabot fined the prosecutor $2,500 for failing to obey the almost two-year-old court order. But that’s a minuscule sum compared to the tens of millions seized by government authorities in Michigan each year, as well as the tens of thousands of dollars Barnes had to spend in legal fees for the return of a fraction of that amount.

Barnes, who calls himself a crime victim, is still waiting on the return of the rest of his property. “My family’s been robbed” of property and money, Barnes said.

State Rep. Peter Lucido (R-Macon County) is leading efforts to reform Michigan’s civil asset forfeiture regime. Lucido noted that forfeiture proceeds were supposed to reduce drug trafficking, “and we can see that [they] failed.” He also questioned the wisdom of allowing law enforcement to take the property of a citizen who hasn’t been convicted of a crime.

“I completely agree that a criminal should not profit from a crime,” Lucido said. “But by the same token, do we want police taking somebody’s stuff who turns out not to be a criminal?”

Michigan law enforcement authorities also make liberal use of the federal equitable sharing program. According to IJ data, between 2000 and 2013, state law enforcement agencies took in $127.6 million in DOJ equitable sharing funds and $19 million in Treasury Department equitable sharing proceeds. Over 90 percent of the DOJ funds resulted from joint task force operations, which were not affected by Holder’s reforms.

Wyoming does very little to protect citizens from police seizure of their assets. The Cowboy State earned a D- from the Institute for Justice. Government officials need only establish a connection between property and a crime by a preponderance of the evidence. Wyoming law enforcement agencies have a significant (many characterize it as an inappropriate) incentive to seize property—they get to keep 100 percent of the proceeds from forfeitures.

Recognizing the need for reform, the Wyoming legislature passed a bill in 2015 that would have required a criminal conviction before seized property could be forfeited. Unfortunately, Gov. Matt Mead used his executive privilege to veto the bill. In doing so, Mead argued that civil asset forfeiture “is important and it is right.” Why he believes that “it is right” is puzzling.

Phil Parhamovich certainly does not agree with Mead. In March 2017, Parhamovich was stopped while driving on I-80 in Wyoming. After an aggressive interrogation by a highway patrol officer in which he denied having anything illegal in his minivan, a drug-sniffing dog was called to the scene. The dog alerted after what the Foundation for Economic Education (“FEE”) said appeared to be coaching from the officer.

Probable cause in hand, officers searched Parhamovich’s van and found $91,800 in cash hidden inside a speaker. Parhamovich intended to use the money as a down payment toward the purchase of a historic music studio in Madison, Wisconsin.

The ill-informed (or ill-intentioned) Wyoming police officers implied that carrying a large amount of cash is a crime (of course, it’s not). Under what he perceived to be the threat of arrest and criminal prosecution, Parhamovich, who has no criminal record, signed a waiver in which he “gave” his money to the Wyoming Division of Criminal Investigation. Parhamovich then drove away from what could fairly be described as an armed robbery under the color of authority with a $25 ticket for failure to wear a seat belt, a warning for improper lane use, and 91,800 fewer dollars.

Several days after the incident, Parhamovich overcame the shock of the bizarre and unsettling encounter and attempted to revoke his written waiver. He also asked to be notified of any court proceedings in which he could challenge the seizure of his money. The state didn’t bother with any judicial proceedings—that is until the Institute for Justice entered an appearance on Parhamovich’s behalf.

According to the FEE, a judge ordered the return of Parhamovich’s cash a few hours after the IJ became involved, and the Wyoming Attorney General quickly complied. Why? Because the seizure of Parhamovich’s money was wholly indefensible in the light of day and in a court of law, as opposed to on the side of a desolate road with armed goons wearing badges threatening arrest, where it’s easy to intimidate frightened motorists into “voluntarily” waiving rights to their property.

Waivers such as those used in Wyoming are banned in several states. In the aftermath of Parhamovich’s case, the FEE reports that the Wyoming legislature is rethinking the propriety of allowing heavily armed troopers to extract waivers from unsuspecting and otherwise law-abiding citizens. State Sen. Anthony Bouchard said that while outlawing roadside waivers is a good idea, more has to be done to prevent abusive asset forfeitures. Anya Bidwell, an IJ attorney who represented Parhamovich, echoed the sentiment.

“Not everybody can find the Institute for Justice, and not everyone can just raise hell about this kind of stuff,” Bidwell observed. “So even though [Parhamovich’s] hearing was very successful, it still doesn’t remedy the bigger issue. Civil forfeiture is still a problem. They shouldn’t be able to take anybody’s property without accusing them of a crime.”

Oklahoma, Arizona, and Georgia were all given D- grades as well. All three states only require the government to connect the seized property to crime by a preponderance of the evidence. Law enforcement agencies in these states also have a strong incentive to seize property because they can keep it all. And when an innocent third-party owner of seized property wants that asset back, she will face the burden of proving her own innocence and lack of knowledge of any criminal activity.

Eh Wah made the mistake (but definitely not a crime) of driving through Oklahoma with a large amount of cash. The IJ reports that Muskogee County deputies seized $53,000 from his car—which included donations to a Thai orphanage—and did their damnedest to keep it. Six hours after the IJ became involved in the case, Wah rightfully got his own money back.

Alda Gentile was pulled over in Georgia in 2013 while driving from New York to Florida with her son and one-year-old grandson. Despite finding no evidence of either drugs or a crime related to money, police seized $11,000 in cash from Gentile, money that was intended as a down payment on a condo. The flagrant theft of law-abiding citizens’ money has led to calls for change in Georgia.

State Rep. Scot Turner introduced a bill in February 2017 that would require Georgia authorities to obtain a criminal conviction prior to forfeiting seized money to law enforcement. Jason Pye of the limited government advocacy group FreedomWorks said that Turner’s bill would greatly enhance the protection of Georgians from abusive seizures and would “restore[] due process” in the asset forfeiture milieu.

“Georgia took a step in the right direction a couple of years ago with the passage of HB 233,” Pye said. “Still, that law is lacking in protections. Property can still be permanently seized by law enforcement based on a low evidentiary standard without ever arresting, charging, or convicting the owner of a crime. As someone who works on this issue, [I think] this is a standard law enforcement should have to meet.”

Turner knows that his bill faces an uphill climb. This is because law enforcement groups almost universally oppose reforms of civil asset forfeiture laws. The siren call of free money is just too strong.

This may have been what led Arizona authorities to refuse to return a truck seized from Rhonda Cox’s son, who was arrested for theft. When Cox told officers that the truck was hers, she was told that she would never get it back. Even after providing proof of ownership of the truck to the county attorney’s office and explaining that she knew nothing about her truck’s involvement in any crime, the prosecutor refused to return it.

Cox tried to represent herself in the proceedings instituted to forfeit her truck to the state. She paid the $304 filing fee but was quickly smote by the bureaucratic machine. After learning that if she lost, she could be required to pay the government’s fees for the privilege of taking her vehicle, Cox did what most people do when their property is seized: She gave up.

At least some fair-minded Arizona authorities recognize the seductive nature of the civil asset forfeiture honey pot. The Institute for Justice highlighted a presentation by the Arizona Prosecuting Attorneys Advisory Council in which prosecutors were warned not to succumb to the temptation to “just start seizing everything in sight.” Doing so, warned the presentation, could “ruin forfeiture for all of us.”

Kenneth M. Burton, chief of police in Columbia, Missouri, summed up the temptation that civil asset forfeiture creates for law enforcement agencies in a moment of brutal honesty. In remarks made to the Citizens Police Review Board in 2012, Burton tried hard to dress up the pig and slap a little lipstick on it, but there’s nothing one can do to make the true motivation behind asset forfeiture sound palatable.

“It’s usually based on a need—well, I take that back,” Burton said. “There’s some limitations on it…. Actually, there’s not really on the forfeiture stuff. We just usually base it on something that would be nice to have that we can’t get in the budget, for instance. We try not to use it for things that we need to depend on because we need to have those purchased. It’s kind of like pennies from heaven—it gets you a toy or something that you need, is the way we typically look at it, to be perfectly honest.”

Fortunately for the citizens of Missouri, the state now has stringent requirements for the use of civil asset forfeiture. For going a long way toward ensuring that state residents and visitors get to keep their property, Missouri earned a respectable B-.

Other states have made significant progress toward ending abusive seizure and forfeiture proceedings. Both Nebraska and New Mexico have essentially ended the practice of civil asset forfeiture by state law enforcement agencies. New Mexico’s efforts began in earnest when the American Civil Liberties Union teamed up with several other reform groups to lobby the state legislature. According to Slate, their cause was bolstered when a recording of a prosecutor encouraging cops to seize expensive cars and homes was leaked. By 2015, civil asset forfeiture became a thing of the past in the Land of Enchantment.

Nebraska also passed laws in 2015 that put an end to civil asset forfeiture in the state. Spike Eickholt of the ACLU said that while law enforcement opposed the measures, their arguments were tone-deaf and focused solely on their bottom lines. “It had gotten to the point…that no one could defend civil asset forfeiture on the merits,” said Eickholt.

Both New Mexico and Nebraska also closed a substantial loophole that other reform-minded states have missed. When law enforcement agencies in states such as California face limitations on their use of state civil forfeiture proceedings, they simply pivot to the back door—the federal government’s equitable sharing program. According to the Institute for Justice, “Equitable sharing…provides a convenient workaround for state and local law enforcement agencies operating under restrictive state civil forfeiture laws.”

Law enforcement agencies in California have benefited significantly from the equitable sharing program. As reforms to state asset forfeiture proceedings came into effect, state-level forfeiture proceeds dropped while equitable sharing receipts skyrocketed. In 2010, the IJ reported that California authorities received around $16 million in state forfeiture proceeds, a $12 million drop from the year before. In the same year, the state obtained $83 million in equitable sharing proceeds from the DOJ alone, an increase of nearly $20 million from 2009. From 2002 to 2013, California law enforcement agencies used federal equitable sharing to enrich themselves to the tune of over $630 million, $350 million more than that forfeited in state proceedings.

As Jeff Sessions works to ease local and state law enforcement access to federal equitable sharing programs, it is crucial that legislative reform efforts at the state level include anti-circumvention provisions. California illustrates the power that civil asset forfeiture has over law enforcement agencies. They just can’t help themselves, so legislatures must help them help themselves.

The Road Forward

The Founding Fathers believed a careful balance of government power was necessary for the success of the republic. They also firmly believed in the importance of the government in protecting property rights. James Madison wrote in 1792 that “[g]overnment is instituted to protect property of every sort…. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own” (emphasis original).

The protection of an individual’s property is arguably one of the most defining aspects of the U.S. Constitution. Yet, through the evolution of civil asset forfeiture laws, state and federal governments have not only failed to protect the property of citizens, they have created a vacuum that almost indiscriminately sucks up private property into the black hole of government treasuries.

The current state of civil asset forfeitures across the land cries out for reform. When law enforcement agencies can seize and keep a law-abiding citizen’s property with little effort and almost no oversight or recourse, they will inevitably abuse that power. Instances of government overreach in the civil asset forfeiture context are myriad; one need not look hard to find stories of Americans who did nothing wrong, losing cars, homes, and life savings to the insatiable forfeiture machine.

The key to reforming civil asset forfeiture laws is removing the perverse incentive created when a seizing agency is permitted to keep the property it seizes. Law enforcement nationwide has proven again and again that the temptation to take property because they can, is just too great.

The Institute for Justice highlights several other necessary aspects of forfeiture reform. First, lawmakers should increase the standard of proof for civil forfeiture to “beyond a reasonable doubt.” This would ensure that government officials would have to provide an appropriate amount of evidence prior to seizing a person’s property.

Second, as reform-minded states have already done, legislatures should ease the burden on innocent third parties attempting to get their property back. When an individual’s only connection to an alleged crime is that their property was unknowingly involved, they should not have to move heaven and earth to get it back.

Third, governments should establish robust and transparent reporting requirements for law enforcement agencies that use civil asset forfeiture to obtain property. The public and the legislature must be advised when government actors take a person’s private property for themselves.

Finally, equitable sharing should be abolished. As states attempt to reform civil asset forfeiture laws, law enforcement agencies will thwart the will of the legislature when they can. In the meantime, state reform efforts should include anti-circumvention provisions.

It’s time to put an end to the use of undemocratic and abusive civil asset forfeiture proceedings. The Constitution and justice demand it.


Originally published in Criminal Legal News on February 16, 2018.