Stop the Abuse of Civil Asset Forfeiture

Delaware received a D- in a national survey of civil asset forfeiture systems, prompting modest transparency reforms.

To get a sense of what that grade represents, think about what civil asset forfeiture does: Law enforcement seizes property that is supposedly associated with a crime, and then sells it at auction for profit. In other words, police have financial incentive to take your stuff. If you can prove by a preponderance of the evidence that the stuff had nothing to do with the crime, you may get it back. If you can’t, it’s gone, and this part is key — you could lose it even if you did not commit a crime.

Stories illustrating this mechanism are happening across the country, from just up the road in Philly, to Los Angeles, to our own neighborhoods. Delaware law enforcement has seen millions in revenue from these types of seizures.

The problem is this: Financially incentivizing law enforcement to take private property leads to abuse, and is a fundamental misalignment of incentives. It’s perfectly acceptable for police to seize a weapon used to commit a crime — but directly causing financial trauma and even homelessness can create more crime than it solves. The ugly truth is that poor people who cannot afford lawyers to get their property back are disproportionately affected by these policies; in terms of impact, civil asset forfeiture can be thought of as a tax on poor people that law enforcement itself can levy almost whenever it wants.

There are clear reforms that would ameliorate some of the problem. For one, property not belonging to someone convicted of a crime could be protected from forfeiture. Second, any contested property could require law enforcement — not you — to prove the connection and necessity of the seizure. Finally, separating the proceeds of seized property from going to law enforcement budgets — perhaps sending that money instead to public defense organizations, schools, or public housing networks — would sever the direct financial incentive police have to seize your stuff. Senate Bill 60 is an excellent piece of legislation that addresses many of these issues.

It is clear that the status quo is not only ineffective, but it is abused, and could create more crime than it stops. We have to be smarter about how law enforcement interacts with citizens, in order to rebuild the broken trust between communities and cops, people and their prosecutors. Ending civil asset forfeiture as it exists today would help start us down that path.