Law enforcement’s ability to seize money and property without evidence of a criminal act is known as civil asset forfeiture. This favored method of police across the nation has come under increased scrutiny as it has become clear that law enforcement agencies are profiting off these seized goods and cash. Strikingly, between 2001 and 2012 the estimated value of assets seized jumped from $407 million to $4.3 billion. The issue now has national salience, catching the attention of policymakers, journalists and even comedians.
Civil asset-forfeiture is unusual since it is the seized property itself, rather than the person or persons in whose possession the property was found, that is prosecuted. Because of this, the seized assets are presumed guilty and must be proven innocent. This of course, flips our judicial system on its head, undermining many of our due process protections.
The process to reclaim the property can be arduous, and in many cases the value of seized property is less than the legal expense incurred pursuing a challenge, making a legal defense economically irrational. This has led critics to characterize forfeiture practices as “legalized theft,” especially since many of these cases involve the poor.
While policing may be a local issue the problem is exacerbated by federal policy. Police departments are incentivized to pursue civil asset forfeiture by the federal government’s equitable sharing program. Equitable sharing entitles local agencies to claim up to 80 percent of the assets initially seized so long as the federal government adopts the claimed property under federal jurisdiction. Unsurprisingly, the seized assets – cars, cash, and other property – are then used to boost local law enforcement budgets.
Both conservative and liberal voices now rally against civil asset forfeiture. In the National Review, Mercatus scholar Veronique de Rugy castigated police departments for conducting seminars to better train officers on the kinds of assets to target with budget padding as the end goal.
On the other side of political spectrum, the Center for American Progress focused on the plight of the poverty-stricken who have been disproportionately hurt by these tactics. Their 2016 report “Forfeiting the American Dream” details heartbreaking stories of impoverished families and individuals reminiscent more of the exploits of the Sheriff of Nottingham than the rule of law and due process guaranteed to all Americans.
And while other criminal justice reform efforts have stalled on account of election year partisan politicking, there is still a chance to amend abusive civil asset forfeiture laws before the end of the 114th Congress. Rep. Jim Sensenbrenner, R-Wis., and Rep. John Conyers, D-Mich., have introduced one potential option. H.R. 5283, known simply as the Due Process Act, is a comprehensive bill passed through the House Judiciary Committee by voice vote that now awaits floor action. Crucially, members on both sides of the aisle recognize that the federal government’s involvement in civil asset forfeiture needs reform.
In the states, the action has been heating, too. Over the past three years, Michigan, Nebraska, New Mexico, Maryland, Florida and the District of Columbia have each dramatically improved transparency and the standards governing civil asset forfeiture proceedings to limit abuse. As the Heritage Foundation’s Jason Snead explains in this study, “The message is clear: Outside the law enforcement community, support for the forfeiture status quo is remarkably thin.”
Now, Congress has the opportunity to catch up with these states. The Due Process Act goes a long way in establishing federal parameters that limit abuse, increase transparency and establish proper oversight, including extending the right to counsel to indigent property owners for judicial proceedings. The reform also would increase the standard of proof from a “preponderance of evidence” to “clear and convincing” needed to seize assets. Finally, government agencies would be required to prove a substantial connection between a seized asset and a specific offense.
While the bill would not end the equitable sharing program, it does require the Department of Justice to create and maintain two public forfeiture-related databases. The first database would be a real-time catalogue of all federal forfeitures; the second provides details on forfeitures, including the types of forfeiture, agencies involved, and what precipitated the assets to be seized.
As Congress ends the year, they should take advantage of the bipartisan call for change. Due process is essential to our nation’s judicial system; the current practice thwarts our essential constitutional right. The time has come to rein in government overreach and restore individual liberty.
Image by Rob Wilson