In 2014, police seized more property from citizens than was stolen by all the criminals in the country combined. That may sound unbelivable but it’s true – at least according to a report by economist Martin Armstrong. Evocative headlines such as “Civil forfeiture scam lets police collect billions from innocent Americans” help to add brushstrokes to this dire picture. A recent report by the American Civil Liberties Union of Pennsylvania tops it off with the damming statement that nearly one in every four people who had assets forfeited by Cumberland County law enforcement was never found guilty of a crime. Law enforement bodies aren’t doing too bad out of the deal though, judging by a 12 page report by Sarah Stillman for The New Yorker, that claims over the last 30 years the US Department of Justice went from raking in a “measly” 25 million dollars to a Scrooge McDuck vault-busting $4.2 billion haul last year.
So how can this all be?
That answer lies in the art of Civil Fofeiture. A legal process introduced in the 80s, that was obstensibly introduced as an aide to the infamous “War on Drugs”, to make it easier for law enforcement to stop druglords and the like from escaping the reach of the law via tactics such as palming their property off to their relatives or other unimplicated third-parties. According to Gerald McDowell, Chief, Asset Forfeiture & Money Laundering Section, Dept. of Justice, writing for the New York Times in 1996:
Prosecutors choose civil forfeiture not because of the standard of proof, but because it is often the only way to confiscate the instrumentalities of crime. The alternative, criminal forfeiture, requires a criminal trial and a conviction. Without civil forfeiture, we could not confiscate the assets of drug cartels whose leaders remain beyond the reach of United States extradition laws and who cannot be brought to trial. Moreover, criminal forfeiture reaches only a defendant’s own property.
Unsurprsignly, civil forfeiture quickly became popular due to its ease of use. With the police enjoying freedom from that pesky burden of proof in order to sieze something, it falls on the shoulders of the owners (who are often not the accused or connected to the alleged crime at all) to fight if they want their property back. Once they execute a forfeiture, it is up to the property owner to “challenge” the seizure in court. If the property owner does not do this for any reason, including the inability to afford a lawyer or a missed deadline to file a claim, an “administrative forfeiture” is automatically declared and the seized property is presumed “guilty”. There is no additional or independent procedure needed (such as a judge or third-party investigation). Unfortunately, like most legal processes, the process of getting back the property can be ardous and expensive which has the potential to put it out of reach for many ordinary people. To put that in to perspective, according to a report by the Institute of Justice, among federal DOJ civil forfeitures, 88% were “administrative”.
With big cash-based incentives and a board scope that, in principle, allows ordinary people to be punished for seemingly “no reason”, it’s probably not hard to see the risks of abuse that come with such power. How this manifests is usually when law enforcement determine unsuspecting family with little recourse as the weakest link, and target their property in a bid to get to the suspect.
Is it being abused?
A principle problem is that perhaps in order to grant law enforcement officers powers that make them, well, law enforcement, brings the potential for misuse or abuse. Although civil forfeiture is a “solution”, it requires a large amount of trust in the law enforcement agencies: that they will use fair unbiased judgement, due dilligence and discretion – with great power comes great responsibility, after all. Not surprisingly then, major arguments against include that civil forfeitures are mostly “devoid of due process”.Arguments have been made that the seizures violate the due process clause of the constitution since owners have few means to challenge the seizures.
Civil forfeiture is a big topic to cover in depth as it is, but the States is a big place, and there are federal and state laws to consider and compare. So it’s fortunate then that a recent report by the Institute of Justice entitled “Policing for Profit” grades each federal and state civil forfeiture laws. In the findings, states with poor grades mean law enforcement has lucrative incentives to pursue forfeitures but conversely afford weak protections to property owners. High grades signify states with laws that limit forfeiture and offer stronger protections against unjust forfeitures. The findings… were not stellar. 35 states earned grades of D+ or below. The report also surmised that most forfeiture laws do not place regulations or checks on spending transparency and reporting requirements. The report thus concluded:
Civil forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice, and they typically give the innocent little recourse for recovering seized property. And without meaningful transparency, law enforcement faces little public accountability for its forfeiture activity or expenditures from forfeiture funds.
The good news is that change is in the air.
First and foremost, civil forfeiture was supposedly stopped at a federal level in Janurary this year. However here information on the web turned out to be inconsistent – for examle a quick look at the Wikipedia article delves into the history, legal background, proponents and crticis of civil forfeiture with plenty of sources cited, but there is not a single mention of the US Dept of State’s announcement which was almost 1 year ago. The Department of Justice‘s itself site still lists the procedure (under “Asset Forfeiture”) and still mentions it as both a civil and criminal procedure. The FBI‘s site also mentions it under both civil and criminal procedures. Civil forfeiture here is still described as “The burden of proof on the FBI to seize property for civil, administrative and judicial forfeiture is probable cause.“
Even if this is just outdated information, and even if the federal level is changing, it’s only the first step – many states simply used the federal law out of ease. Depending on the state, police may be able to still seize assets under individual states’ laws. Fortunately, some state laws have already made this change. Nex Mexico now requires criminal conviction. Florida has also recently been moving a bill to reform civil forfeiture to require that assets or property may only be seized after a criminal defendant has been convicted of a crime. These movements represent a shifting tide. The public and mass media are becoming more and more aware and outraged with the apparent misuse and arguably poorly-structured civil forfeiture laws. The public is making its voice heard, and there is change – but more action still needs to be taken.