By Nora V. Demleitner, Professor of Criminal and Comparative Law, Washington and Lee University. Originally published at The Conversation
1. What Is Civil Asset Forfeiture?
Civil asset forfeiture laws let authorities, such as federal marshals or local sheriffs, seize property – cash, a house, a car, a cellphone – that they suspect is involved in criminal activity. Seizures run the gamut from 12 cans of peas to multi-million-dollar yachts.
The federal government confiscated assets worth a total of about US$28 billion during the decade ending in 2016, Justice Department data indicate.
In contrast to criminal forfeiture, which requires that the property owner be convicted of a crime beforehand, the civil variety doesn’t require that the suspect be charged with breaking the law.
Three Justice Department agencies – the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and Federal Bureau of Investigation (FBI) – do most of this confiscating. Most states also permit local prosecutors to take personal property from people who haven’t been charged with a crime. However, some states have begun to limit that practice.
Even when there are restrictions on when and how local and state authorities can seize property, they can circumvent those limits if the federal government “adopts” the impounded assets.
For a federal agency to do so requires the alleged misconduct to violate federal law. Local agencies get up to 80% of the shared proceeds back, with the federal agency keeping the rest. The divvying-up is known officially as “equitable sharing.” Crime victims may also get a cut from the proceeds of civil forfeiture.
2. Can People Get Their Stuff Back?
Technically, the government must demonstrate that the property has something to do with a crime. In reality, property owners in most statesmust prove that they legally acquired their confiscated belongings to get them returned. This means the burden is on the owners to dispute these seizures in court. Court challenges tend to arise only when something of great value, like a house, is at stake.
Unless an owner challenges a seizure and effectively proves his innocence in court, the agency that took the property is free to keep the proceeds once the assets are liquidated.
Many low-income people don’t use bank accounts or credit cards. They carry cash instead. If they lose their life savings at a traffic stop, they can’t afford to hire a lawyer to dispute the seizure, the Center for American Progress – a liberal think tank – has observed.
And disputing civil forfeitures is hard everywhere. Some states require a cash bond; others add a penalty payment should the owner lose. The process is expensive, time-consuming and lengthy, deterring even innocent owners.
There’s no comprehensive data regarding how many people get their stuff back. But over the 10 years ending in September 2016, about 8% of all property owners who had cash seized from them by the DEA had it returned, according to a report from the Justice Department’s inspector general.
3. Who Opposes the Practice?
Many conservatives and progressives dislike civil asset forfeiture. Politicians on the left and right have voiced concerns about the incentives this practice gives law enforcement to abuse its authority.
Critics across the political spectrum also question whether different aspects of civil asset forfeiture violate the Fifth Amendment, which says the government can’t deprive anyone of “life, liberty, or property, without due process of law” or is unconstitutional for other reasons.
Until now, the Supreme Court and lower courts, however, have consistently upheld civil asset forfeitures when ruling on challenges launched under the Fifth Amendment. The same goes for challengesunder the Eighth Amendment, which bars “excessive fines” and “cruel and unusual punishments,” and the 14th Amendment, which forbids depriving “any person of life, liberty, or property, without due process of law.”
In 2019, the Supreme Court unanimously found for the first time that these constitutional protections against excessive fines apply not just to the federal authorities but to the states as well.
Some concerns resonate more strongly for different ideological camps. Conservatives object mostly about how this impounding undermines property rights.
Liberals are outraged that the poor and communities of color tend to be disproportionately targeted, often causing great hardship to people accused of minor wrongdoing.
Another common critique: The practice encourages overpolicing intended to pad police budgets or accommodate tax cuts. Revenue from civil asset forfeitures can amount to a substantial percentage of local police budgets, according to a Drug Policy Alliance study of this practice in California. This kind of policing can undermine police-community relations.
The Justice Department’s guidelines state that forfeitures “punish and deter criminal activity by depriving criminals of property used in or acquired through illegal activities.”
However, the Inspector General’s office noted “without evaluating data more systemically, it is impossible for the Department to determine … whether seizures benefit law enforcement efforts, such as advancing criminal investigations and deterring future criminal activity.”
4. What Is the Scale of This Confiscation?
The federal revenue raised through this practice, which emerged in the 1970s, mushroomed from $94 million in 1986 to a high of $4.5 billion in 2014, according to the Justice Department.
The Justice Department says it returned more than $4 billion in forfeited funds to crime victims between 2000 and 2016, while handing state and local law enforcement entities at least $6 billion through “equitable sharing.”
The scale of seizures on the state and local level is less clear.
5. What Happened During the Obama and Trump Administrations?
Under the leadership of Attorney General Eric Holder, the Obama-era Justice Department determined that civil asset forfeiture was more about making money than public safety. It then changed the guidelines for asset adoption.
Beginning in 2015, joint state-federal task forces could continue to share forfeiture proceeds but state agencies were no longer permitted to ask the federal government to forfeit property they had taken on their own.
“I love that program,” Attorney General Jeff Sessions said in 2017. “We had so much fun doing that, taking drug dealers’ money and passing it out to people trying to put drug dealers in jail. What’s wrong with that?”
Attorney General William Barr, Sessions’ successor in the Trump administration, has also defended this policy.
6. Congress and the States
When Sessions changed the policy, legislative changes seemed possible. Senate Judiciary Committee Chairman Chuck Grassley sent Sessions a memo about how the federal funds obtained from seizures were wasted and misused. In some cases, Grassley wrote, the government provided “misleading details about some of these expenditures.”
The House of Representatives voted in 2017 for an amendment that would restrict civil asset forfeiture adoption.
The House also approved a bipartisan measure restricting civil forfeiture on June 20, 2019. This one goes further though and would substantially curtail the federal government’s powers.
State governments have also tried to discourage this kind of confiscation. New Mexico, Nebraska and North Carolina have banned civil forfeiture. Michigan has made it easier to challenge these seizures. Californialimited equitable sharing, and other states have increased the burden of proof the government must meet. But in many states, investigative reporting has shown that innocent owners continue to lose their property.
In a Georgia Law Review article, I gave examples of other ways to keep police departments and municipalities funded, such as increasing fines and fees.
Unless the police pursue some alternatives, funding woes will continue to contribute to abusive policing practices that fall most heavily on those who can the least afford them: the poor and communities of color.
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> . . . I gave examples of other ways to keep police departments and municipalities funded, such as increasing fines and fees.
Policing for profit is as old as the police. Raising fines and fees and then funneling that loot directly to the police department or the municipality that hires the police means that is what gets policed.
A good example is Edmonton, Alberta. Fines became part of the police department operating budget so the only driving law worth enforcing is speeding. The city is a hellhole of speed traps. It is so bad that, drivers welcome photo radar. A fine from photo radar doesn’t increase your points total on your license. The whole purpose of photo radar, as the city manager at the time, one Richard Picherak said to the police chief and mayor Jan Reimer (1989 – I remember the “leaders” in charge conspiring to turn Edmonton roads into police tollbooths) during budget deliberations was about the Loonies and Richard even threw out some ridiculously lowball number about how much the cops can make with photo radar, to deliberately mislead the public.
Another tactic that municipalities use for a big cash grab is to set absurdly low speed limits on wide open roads to shoot the out of town fish in a barrel. Locals know about the scam, indeed are in on it, as travelers passing through are taxed . . . er, fined.
None of this is about road safety.
Robber Barons 2.0 :(
On the bright side, there are probably apps available or in development to warn about such asset grabs, lol. That shows another type of resource allocation distortion, proving once again the adage about what is illegal isn’t so much the issue as what is legal.
Will youngsters pondering future studies decide to devote their mental energies to working around the fringes of ethical behaviors? What about if they perceived having guns pointed at their heads during any decision-making? That type of erosion of what used to be decency is engrained now.
There are two reasons I use the Waze app while driving.
#1. People report slowdowns, traffic, etc, so I can plan my drive better.
#2. People report every time they see a police officer on the road.
If apps like this were widely used, the police revenue’s would plummet. I understand that I am trading privacy for this.
Using any GPS is giving up some aspect of privacy but at least there is a social benefit beyond just navigation with Waze.
Want to bet that just like radar detectors were banned for the public, Waze and apps like it will be too? For that matter the repeated attempts to ban effective personal crypto.
Radar detectors were banned in Canada (I don’t know how long ago), but not in the US, except for Virginia and DC, as far as I know. The only other contribution I can make to this discussion is that a very senior state police official many years ago told me on an absolutely off-the-record basis (I was a newspaper reporter at the time) that any honest cop would tell you that stationary radar traps, in the absence of a documented complaint of persistent speeding, are a very poor use of police resources.
Thanks very much for this post.
“Many conservatives and progressives dislike civil asset forfeiture. Politicians on the left and right have voiced concerns about the incentives this practice gives law enforcement to abuse its authority.
Critics across the political spectrum also question whether different aspects of civil asset forfeiture violate the Fifth Amendment,….”
Just wanted to repeat this.
Japanese Americans lost their land after WW2 internment.
That was wrong then and this is wrong now.
The year 1986 is mentioned in the article. That reminded me Richard Nixon signed into law the Federal Revenue Sharing Act in 1972. From the Britannica:
In the unique revenue-sharing program in the United States during 1972–86, money collected in federal taxes was given to state and local governments. The federal government imposed few restrictions on how revenue-sharing money could be used, for one of the principles underlying the program was that local elected officials were supposedly more effective at determining local needs. Communities held public hearings on how the money would be spent; there could be no discrimination in its use; and public audits were also required. As a result, small towns and counties, as well as large cities, received direct federal aid. …During the 14 years of the program’s operation administrative costs were extremely low, and a total of $85 billion reached America’s communities.
https://www.britannica.com/topic/revenue-sharing
This revenue-sharing program ended in 1986 during the Reagan administration. The posted article notes that civil asset forfeiture seizures increased greatly from earlier practice starting in 1986. An interesting coincidence, imo.
+1!
Yes, Keynesian economics, American style.
Just a reminder: civil forfeiture was drastically reduced in Oregon by a citizens’ initiative. It was widely popular – conservatives don’t like it, either, because of “property rights,” which it certainly violates. Property, other than outright contraband, can only be seized after a conviction (which seems like basic constitutional law).
State law doesn’t restrict the feds, of course, but even they seem to do it rarely – might complicate jury trials, for one.
When the cops are the criminals who steal your money from you , while they wag their fingers at you accusing you of something that you didn’t do, it is a sign of the times.
The cops are criminals, and the “thin blue line”, is really more like a gang affiliation . The decent cops generally can be counted on not to disrupt any practices of the dirty cops…. hence we live in feudal times…. where the sheriff’s of nottingham are predators of the citizenry.
With the president an obvious criminal, and his justice department are a bunch of thugs…in all their forms.. they steal your money, they defile your kids… and they have the arrogance to feel entitled to do so…
And to sum it all up… no one seems to be able to do anything about it.and when they do… what will that mean?
After all if North Carolina stopped this practice (which I doubt that stopping this practice has really gotten through to the cops and prosecutors)…. I guess they make their money now by rounding up and incarcerating illegal immigrants for the 287 program… Alamance county takes people rounded up at the border… and detain them for money; for a jail, they otherwise couldn’t afford)
While many states are ending the prohibition of cannabis, north carolina wants to ban smoking hemp(even though they just legalized growing hemp), because the police can’t tell the difference from when people are smoking pot… and they want to have something to charge you with when they take your stuff.
The cops are criminals
This practise violates rights to due process under the 4th Amendment and American Jurisprudence of innocent until proven guilty.
Anyone who gets to serve on a jury needs to know their rights and know they have the right to nullify bad law by voting not guilty.
In other words, voting irrespective of the law
and it is allowed though judges will not inform juries they have the right.