What is civil asset forfeiture? Civil asset forfeiture is a tactic used by law enforcement to seize a person’s money, car, or other property—including bank accounts, businesses, houses, and jewelry—based simply on the suspicion that the property was used to commit a crime or connected to criminal activity. Property owners do not have to be charged with, let alone convicted of, any crime for law enforcement to take their property. In fact, in a shocking 80% of civil asset forfeitures, the property owner is never charged with a crime.
Where does it come from? This legal fiction—that property can be “guilty” of a crime and therefore forfeitable—dates back two centuries, as authorities needed a mechanism to seize boats filled with contraband when the boat owners were beyond American borders. Until the “War on Drugs,” this now-controversial law enforcement tactic was almost never used. In the 1970s, however, Congress passed legislation that allowed law enforcement to seize property and money thought to be associated with illegal drug trade. Then, in 1984, Congress passed a law allowing law enforcement agencies to retain the proceeds from successful forfeitures. Although this was intended as a tool to target drug kingpins and crime syndicates by undercutting their profits, civil asset forfeiture has expanded far beyond this narrow purpose and fundamentally altered modern day policing. For context, in 1985, the Justice Department took in $27 million worth of forfeited proceeds. Thirty years later, in 2014, it took in $4.5 billion in forfeited assets. The assets taken annually by local and state police departments are even higher.
What does it look like? The vast majority of asset forfeitures nowadays involve highway traffic stops. Police will look for rental cars or cars with out-of-state licenses and pull them over for minor traffic violations—such as changing lanes without a blinker or following too closely—then, if police determine the occupant seems “suspicious,” they will ask to search the vehicle. If a large amount of cash is found, police will seize that cash as drug-related. Most often the driver is not even issued a ticket, let alone charged, but the cash goes to the law enforcement agency that made the seizure.
The Problem
“Policing for Profit”—Perverse Incentives: The fundamental issue with civil asset forfeiture is that the agency who seizes the property gets to keep and spend the proceeds, whereas (before 1984) those proceeds went into a general fund not accessible to law enforcement. Departments now routinely seize 20% or more of their annual budgets in forfeiture proceeds—a phenomenon known as “policing for profit.” These proceeds can be in the form of cash (either directly forfeited or profits made from selling forfeited property, like a home) or vehicles, which police are entitled to use after being seized.
With asset forfeiture now commonplace, local governments routinely reduce law enforcement budgets by the amount generated in forfeiture in prior years on the expectation that the difference will be made up through civil forfeiture. This practice—known as “budget supplanting”—renders agencies dependent on asset forfeiture to fund their operations, greatly increasing the pressure to seize more. This creates a myriad of perverse incentives: in particular, the incentive to allow individuals to commit crimes so police can seize the resulting profits. For example, police are far more likely to patrol a city’s outbound lanes—where illegal drug profits are leaving the city—than the inbound lanes—where police could stop the flow of drugs into the city. Police also routinely engage in “reverse stings,” posing as drug sellers rather than buyers because buyers tend to have more cash on hand subject to forfeiture. Law enforcement will also often let go people they know (or strongly suspect) to be involved in drug trade in exchange for them signing away their rights to any cash discovered when their vehicles are stopped.
“Guilty Until Proven Innocent”—Lack of Procedural Protections: In forfeiture proceedings, federal agencies (and law enforcement in most states) need only show by a “preponderance of the evidence” that the property seized had some connection to illegal activity (in some states, the standard is even lower, merely probable cause). In virtually all states, law enforcement does not have to show that the property owner had actual knowledge of any crime so long as the property was in “close proximity” to a controlled substance. To keep their property, then, owners must prove a negative: that their assets were not connected to a crime (“guilty until proven innocent”). It is extremely difficult to overcome this presumption even in front of a judge, but the odds are further stacked against property owners as most forfeiture challenges are first handled administratively—meaning the law enforcement agency that seized the assets investigates and “rules on” the challenge before it can be appealed to a judge.
Property owners are also not entitled to counsel in forfeiture proceedings, even if they are indigent. When a person cannot afford to challenge the forfeiture, the government wins by “default” and the forfeited assets go directly back into the hands of the law enforcement agency that seized them. Even when people can afford a lawyer, it often does not make financial sense to challenge the forfeiture because the attorney’s fees may be higher than the amount seized.
Complete Lack of Oversight and Accountability: Virtually no state and local law enforcement agencies are required to track or report their forfeiture activities—meaning there is no transparency about how much was seized or how much was spent. Unsurprisingly, this utter lack of transparency and accountability has led to instances of corruption. For example, the former police chief of Romulus, Michigan was charged with racketeering—along with his wife and five other officers—for using forfeiture funds to purchase prostitutes and marijuana. A former sheriff in Camden County, Georgia, used forfeiture money to pay prison inmates to build himself a private weekend home and donated $250,000 in forfeiture proceeds to his alma mater to start a scholarship in his name. In Oklahoma, two officers were indicted for allowing a suspected drug dealer to go free in exchange for $10,000 cash discovered in his vehicle; also in Oklahoma, a district attorney ignored a court order to sell a seized home and instead lived in it rent-free for five years. Because forfeiture funds are gathered and spent in secrecy, it is impossible to know how rampant such corruption is.