Yes, the Police Can Take Your Money and Property
And the Department of Justice helps them do it.
Civil asset forfeiture laws enable law enforcement to seize tens of millions of dollars of cash and property on the mere suspicion they were involved in criminal activity, and without convicting the property owner of a crime. Yes, you read that right. Police regularly seize money and property from people across the United States merely on the suspicion of crime — there’s typically no conviction and no trial.
Long justified as a tool for taking the financial wind out of the sails of criminal enterprises, civil asset forfeiture has become an increasingly abused law enforcement tactic that violates property and due-process rights and undermines the bedrock legal presumption that individuals are innocent until proven guilty.
Civil forfeiture poses several significant problems for individual liberty and the rule of law:
- Low burden of proof: Convicting an individual of a crime requires the government to prove that person’s guilt “beyond a reasonable doubt,” but taking an individual’s property through civil forfeiture typically requires only a “preponderance of the evidence,” meaning it is more likely than not that the property was involved in a crime.
- Circumvention of due process: Heritage Foundation senior legal fellow John Malcolm explains that “the deck is stacked against any property owner who wishes to contest” a forfeiture, because the burden often falls on him to prove he owns his property legitimately. However, he is not entitled to legal representation. Many cases go uncontested because people cannot afford the time or money required to get their own property returned.
- Perverse incentives: The potential for law enforcement agencies to profit directly from forfeiture proceeds has made abuse all too common. With civil forfeiture, agencies typically have the ability to obtain and use funds with no legislative review or oversight.
The motive of profit incentivizes law enforcement to spend more time chasing forfeiture opportunities than apprehending criminals, which should trouble anyone interested in public safety. One investigation in Tennessee “revealed that officers in the 23rd Judicial District made ten times more stops on the westbound” side of the highway, where money from drug deals flowed, than on the eastbound side, where the actual drugs could be found.
Despite the controversy surrounding civil forfeiture laws, they are still common practice in most states, and their sad consequences are manifold: People have lost their businesses, families have lost their homes, and individuals have lost their life’s savings, all because they were either suspected of committing a crime or another person used their property for illegal activities.
Civil asset forfeiture has become such a threat to individual rights that even those who once supported the practice, like former New Mexico attorney general Hal Stratton, are now calling for its reform.
Reformers like Stratton recommend removing the temptation to abuse the practice by requiring a criminal conviction for forfeiture and ensuring that forfeiture proceeds go to the state’s general fund, rather than to individual departments or agencies. Reforms like these, which states like New Mexico have enacted and others are considering, would help ensure the fundamental rights to property and due process, while better safeguarding the rule of law.
Unfortunately, such reforms have had limited impact because of the Department of Justice’s Equitable Sharing Program. Through this program, state law enforcement authorities otherwise constrained by strict state laws can have their seizures processed and litigated by the federal government. In return, state authorities receive 80 percent of the proceeds from successful forfeitures.
In December, the Justice Department suspended the program due to budgetary restraints, but that decision was reversed this week when the department announced it would resume payments to local law enforcement agencies. Once again, state law enforcement authorities simply have to find a basis for federal involvement in the case, and seizures can proceed under the equitable sharing program — even if those seizures are contrary to reforms made by state lawmakers.
This is bad news, both for property owners and for state and local legislators who have reformed or intend to reform civil asset forfeiture practices. As long as equitable sharing continues, police will be able to work around civil forfeiture reforms, rendering these protections of property less effective.
Furthermore, as states consider changes, a lack of information regarding civil asset forfeiture hampers reform efforts. While some egregious cases around the country — like the use of proceeds from forfeitures to purchase margarita machines and Hummers for local law enforcement — have drawn ire, a lack of transparency in many states makes it difficult for the public to understand the magnitude of the practice.
Fortunately, in states like Texas, research organizations have worked to collect data on civil asset forfeiture, understand its impacts, and explore how to remedy this problem, helping to educate the public about their rights and the practices that violate them.