Asset Forfeiture: Taking Bad Guys’ Things?
Civil asset forfeiture is in the news again this week after Attorney General Jeff Sessions announced the reversal of an Obama Administration prohibition on “adoptions.” No, this has nothing to do with children. It has to do with the concept of the Federal government “adopting” the seizures of state agencies in order to forfeit those assets more easily.
Over the last few years, several politicians (think Rand Paul), commentators, newspapers, and self-appointed experts have been critical of the federal civil asset forfeiture program. Some have likened the program to officially-sanctioned government theft, or asserted that the program lacks sufficient due process protections. In most cases, the critics are wrong on the facts and the law.
Civil asset forfeiture is the process by which the federal government can seize an entity’s or person’s property based on probable cause that the property is either proceeds of a criminal activity or was used to facilitate that activity. See, 18 U.S.C. § 981, et seq. For example, DEA agents might seize a vehicle used to transport narcotics; or the FBI might seize bank accounts containing money obtained through selling child pornography or stolen credit card numbers.
Many libertarian publications, like Reason.com, speak often of their disdain for civil forfeiture. In fact, Reason has an article today entitled, “13 Reasons Jeff Sessions is a A$#/!” One of those 13 reasons is Sessions’ position on civil forfeiture. They have another article entitled, “Let Cops Be Robbers.” Their position is clear: civil forfeiture is theft. Why? Because civil forfeiture often involves cases where the party from whom property is seized, is never charged with a crime.
It’s a fair criticism…if you don’t understand forfeiture. The purpose of forfeiture is to rob crooks of their ability to profit from their crimes. The program has been immeasurably successful in ripping away billions of dollars from drug cartels, arms traffickers, identity thieves, and money launderers. Moreover, the program has been responsible for returning hundreds of millions of dollars to victims; something that would likely not happen otherwise.
Civil forfeiture, particularly at the federal level, has numerous due process safe guards in place. But let me explain how property could be seized as proceeds of a crime, but the “owner” of that property not be charged. In my own experience, I seized money from individuals who “owned” the money, but where it had been transferred to them by someone who had stolen that money from someone else. In credit card fraud, I could sometimes trace exactly what was purchased with a stolen card, but not know exactly who purchased it. But because the product gets registered (like an electronic device, software, etc.), you know who has it. Law enforcement can get a warrant, which is based on probable cause, to seize that item/property, believing it to be proceeds of fraud, without having the evidence to arrest the “owner” of the property. Similar circumstances might apply to drug runners carrying large amounts of cash as they leave a known stash house, or money launderers running their illicit funds through middlemen who own the property for a time, but are intending to continue the movement of the stolen funds.
There are also numerous due process protections in place for real, lawful owners. There are procedures in place to prevent the seizure of property without cause, to return property improperly seized, and for owners to challenge the seizure even if the government believes it was righteous.
In many of the cases I described above, no one comes forward to challenge the seizure, and it has nothing to do with the alleged complexity of the process (which isn’t true). It has everything to do with the fact that criminals don’t want to further expose themselves to potential criminal prosecution over some money, a car, or some other piece of property they know they obtained illegally.
Lastly, critics will often point to the outlier cases as a basis for reforming or ending the program all together. The critics will point to an individual story, claiming that the strong arm of the government descended on a completely innocent business owner and devoured its possessions. Assuming, for the sake of argument, that the government did get it wrong in those extremely rare cases, what then? Is that a basis for destroying a program that has been around, in some form, since the first Congress? I would say not. Imagine if we stopped arresting people because in very rare instances, the officers get the wrong guy. All of us would recognize that for the absurdity that it is. Yet, for some reason, that is the very rationale used to justify ending the forfeiture program.
