Law-enforcement officials have seized billions from citizens through civil forfeiture. Is that process being abused?
Policing for profit
What is civil forfeiture?
A controversial legal process that enables law-enforcement agencies to seize cash, cars, property, and other assets from people who are merely suspected of criminal activity. The owner doesn’t have to be arrested or charged—the arresting officer only needs to demonstrate “probable cause” that the asset is linked to criminal activity, most often drugs. Once something has been seized, the owner cannot get it back unless he or she goes to court to prove it was not a proceed of crime. The abuse of this process by local and state police and the U.S. Justice Department has sparked a growing backlash among both Democratic and libertarian-leaning Republican members of Congress, who say the process is a flagrant breach of constitutional due-process rights, and that it gives law-enforcement agencies a powerful incentive to act unscrupulously. “It’s simply not right,” says Southern Poverty Law Center attorney Emily Early, “for the government to take and keep someone’s money, vehicle, or other property without having to prove any wrongdoing by the owner.” Conservative Supreme Court Justice Clarence Thomas recently agreed, saying the forfeiture system “has led to egregious and wellchronicled abuses” and should be reviewed by the high court.
When was forfeiture created?
Civil-forfeiture laws were crafted in the early days of our nation’s founding, primarily as a tool against piracy on the high seas. They later made an extensive comeback during Prohibition. But the practice became much more widespread during the war on drugs in the 1980s, when law-enforcement agencies wanted more tools to target cartel leaders and big-time dealers. The 1984 Comprehensive Crime Control Act created a special fund that transferred forfeiture proceeds to the crimefighting agencies responsible for them; it also set up the Equitable Sharing Program, which rewards local police forces that assist federal agencies with up to 80 percent of forfeiture spoils. In the three decades since, civil-forfeiture activity has exploded. Annual deposits into the Justice Department’s fund grew from $93.7 million in 1986 to about $1 billion in 2007, and up to $4.5 billion in 2014. The Drug Enforcement Agency alone has confiscated $4 billion from drug suspects since 2007—some $3.2 billion from people who were never charged with a crime. Sen. Charles Grassley (R-Iowa) has described the system as a “slush fund for the federal government.”
What about at the state level?
State and local police seized $2.5 billion in cash from nearly 62,000 people without warrants or indictments between 2001 and 2014, an investigation by The Washington Post found. These agencies generally use the proceeds to pad their budget and buy new cars and other police equipment; in Texas, the money can even go straight into officers’ pockets in the form of bonuses. Not surprisingly, police departments that have become heavily reliant on forfeiture fiercely oppose any efforts to curb the practice. They argue that forfeiture rules allow law-enforcement agencies to disrupt drugtrafficking operations. Many cases—more than 70 percent in Texas—aren’t contested, which police say implies guilt. Attorney General Jeff Sessions insists forfeiture is justified, saying that “95 percent” of cases involve criminals who’ve “done nothing in their lives but sell dope.”
Is that true?
The evidence suggests that it’s not. People often can’t try to retrieve seized assets because they don’t have enough money to hire a lawyer for a long, grueling battle. The value of assets being seized, moreover, indicates that many forfeiture targets are hardly major drug kingpins. And abuses of the system are well documented. In 2014, cops at Cincinnati Northern Kentucky airport confiscated $11,000 from a student named Charles Clarke because they said his suitcases smelled of marijuana; the cash was his life savings, and it took him two years to recover the money. In 2012, police wrongly confiscated $17,550 from a restaurant owner in Virginia. By the time he recovered his money, 12 months later, his business had gone bust because he lacked capital.
Who’s pushing back against forfeiture?
In response to an outcry by civil libertarians, 13 states now require a criminal conviction in most or all forfeiture cases. Rep. Jim Sensenbrenner (R-Wis.) and more than a dozen co-sponsors from both parties recently reintroduced a bill that would shift responsibility for proving guilt or innocence from the individual to the law-enforcement agency, and would increase the burden of proof to “clear and convincing evidence.” Brad Cates, a former Justice Department official who helped create the system in the 1980s, now says forfeiture has become “unconscionable” and needs to be abolished. Dick Carpenter of the Institute for Justice, a libertarian law organization, agrees. “This is not something isolated happening to drug kingpins and mafiosos,” he says. “[It] is happening to everyday people in every state across the country.”