Editor’s note: Should someone wearing a badge have the power to relieve a suspected drug dealer of his Maserati on the spot without giving him an opportunity to flee or liquidate and launder his assets? Known as civil asset forfeiture, this practice might sound like a wise policy.
But lawmakers on both sides of the aisle in Congress are challenging the Trump administration’s embrace of the arrangement, which strips billions of dollars a year from Americans – who often have not been charged with a crime. Law professor and criminal justice expert Nora V. Demleitner explains how this procedure works and why it irks conservatives and progressives alike.
What is 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 has confiscated assets worth a total of about US$28 billion this way over the past decade.
In contrast to criminal forfeiture, which requires that the property owner be convicted of a crime beforehand, the civil variety doesn’t even 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 state and local police to take personal property from people who haven’t been charged with a crime.
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 percent 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.
In most years state and local police received more money under equitable sharing than crime victims.
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 must 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 percent of all property owners who had cash seized from them by the DEA had it returned, according to the Justice Department’s inspector general.
Who opposes the practice?
Many conservatives and progressives hate 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 challenges under 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.”
Some concerns resonate more strongly for different ideological camps. Conservatives object most strongly about how this impounding undermines property rights.
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 the Drug Policy Alliance study in California. This kind of policing can undermine police-community relations.
What is the scale of this confiscation?
The federal revenue raised through this practice, which emerged in the 1970s, mushroomed from US$94 million in 1986 to $4.5 billion by 2014, according to the Institute for Justice, a nonprofit libertarian public interest law firm that litigates property rights cases and researches civil forfeiture.
The Justice Department says it has returned more than $4 billion in forfeited funds to crime victims since 2000, while handing state and local law enforcement entities about $6 billion through “equitable sharing.”
Only 14 states and Washington, D.C. publish forfeiture data. But the Institute for Justice estimates that in 2012 state police and sheriffs in 26 states and D.C. reaped about $252 million from civil asset forfeitures.
Local authorities also seize assets this way, but no one tracks that data.
What did the Obama and Trump administrations do?
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 ended the most disputed aspects of asset adoption and sharing in 2015, exempting joint state-federal task forces.
In July of this year, Attorney General Jeff Sessions announced that the Trump administration was resurrecting equitable sharing. Following bipartisan backlash, he publicly defended it.
“I love that program,” Sessions said recently. “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?”
How are Congress and the states responding?
Less than two weeks later, the Republican-controlled House of Representatives voted for an amendment that would restrict civil asset forfeiture adoption.
It’s likely that the Senate could follow suit. 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.”
State governments have also tried to discourage this kind of confiscation. New Mexico and Nebraska have banned civil forfeiture. Michigan made it easier to challenge these seizures. California limited equitable sharing, and other states are also considering reforms.
In a forthcoming Georgia Law Review article, I gave examples of other ways to keep departments funded, such as increasing fines and fees.
Unless the police pursue some alternatives, funding woes will continue to contribute to abusive practices that fall most heavily on those who can the least afford them: the poor and communities of color.