Civil Forfeiture: A Threat to Private Property and the Impartial Pursuit of Justice

Civil forfeiture—where the government can take and sell your property without ever convicting or even charging you with a crime—is one of the greatest threats to property rights in the nation today. Civil forfeiture cases proceed against one’s cash, cars, or home, which means that property owners receive few, if any, of the protections that criminal defendants enjoy. To make matters worse, when law-enforcement agencies take and sell your property, they frequently get to keep all the proceeds for their own use. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.

What Is Civil Forfeiture and Where Did It Come From?

Civil forfeiture is a legal fiction that pretends to try inanimate objects for their involvement with criminal activity. Civil forfeiture actions are in rem proceedings, which means “against a thing.” That is why civil forfeiture proceedings have bizarre titles, such as United States v. $35,651.11 in U.S. Currency or State of Texas v. One 2004 Chevrolet Silverado.

Of course, cash, cars and homes do not break laws.  The legal fiction arose out of the medieval idea of “deodand,” which superstitiously held that objects acted independently to cause death.

Although the Founders didn’t believe in this superstition, they used civil forfeiture as a way to enforce the collection of customs duties, which provided 80 to 90 percent of the federal revenue during that time. The government often could not try owners of smuggling ships themselves (often because they were overseas), and so civil forfeiture let officials seize their ships and cargo as a second-best option.

With minor exceptions during the Civil War and Prohibition, civil forfeiture remained a legal backwater. But as the war on drugs heated up during the early 1980s, so too did civil forfeiture. A key legal change occurred in 1984 when Congress established the Assets Forfeiture Fund. Previously, all federal civil forfeiture revenues were deposited into the government’s general fund. But after the 1984 amendments, federal agencies could retain and spend forfeiture proceeds—subject only to very loose restrictions—giving them a direct financial stake in generating forfeiture funds. Similar amendments now allow law enforcement agencies in 42 states to keep and use some or all of the civil forfeiture proceeds they seize.

“Policing for Profit” Creates Incentives for Abuse

The changes at the federal and state levels led to an explosion of forfeiture activity. Because in most jurisdictions law enforcement can keep some or all of the proceeds from civil forfeiture, they have an incentive to seize and keep as much property as possible. The U.S. Constitution requires law enforcement officials—both police and prosecutors—to administer the law fairly and impartially . But civil forfeiture dangerously transforms law enforcement priorities away from this goal and toward the pursuit of profit instead.

These concerns are exacerbated by legal procedures that make civil forfeiture relatively easy for the government.  Here are four ways that civil forfeiture stacks the deck against property owners:

  • Burden of Proof: For the government to keep a person’s property using civil forfeiture, it must prove that the property is connected to criminal activity.  But where criminal forfeiture requires the government to prove someone is guilty “beyond a reasonable doubt,”  the government can prevail under much less rigorous standards in civil forfeiture cases.
  • Guilty Until Proven Innocent: Although many jurisdictions provide an “innocent-owner” defense that allows owners to get their property back if they had no idea that it was involved in a crime, most jurisdictions presume that owners are guilty and force them to prove their innocence.
  • Legal Representation: Anyone who has watched a crime drama knows that the government must provide criminal defendants with an attorney if they cannot afford one. But civil forfeiture victims must either pay for a lawyer—which in many cases can cost more than the seized property is worth—or go it alone.
  • “Equitable” Sharing: Federal law provides a loophole called “equitable sharing” to law enforcement in states with good civil forfeiture laws.  This program allows state law enforcement to turn seized assets over to the federal government, which forfeits the property under federal  law.  In turn, the federal government gives up to 80 percent of the forfeited property back to the state agency for its own use, even if state law would have required those proceeds to go into a general fund.

The power of law enforcement to keep and use the property they take using civil forfeiture raises the specter of agencies with their own off-budget slush funds. Requiring agencies to report the civil forfeiture proceeds they take in and how they spend them should be a simple reform that everyone can agree upon. But many states do not require such reporting and, even when they do, some law enforcement agencies simply ignore their legal duties. With such little accountability, it should be no surprise that abuse in the world of civil forfeiture is rampant.

It is time to end civil forfeiture.  People shouldn’t lose their property without being convicted of a crime, and law enforcement shouldn’t be able to profit from other people’s property.