Asset Forfeiture

Congress Can Help Fight Police Abuse by Ending Incentives to Seize Assets

The Fifth Amendment Integrity Restoration Act would help take the profit motive out of law enforcement

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This election year has seen increased attention to the use and abuse of civil asset forfeiture programs by law enforcement agencies. These programs allow officers and federal law enforcers to seize and keep funds and property they claim are connected to crime. Asset forfeiture has been a huge force pushing the drug war forward, as it twists police incentives to focus on vice busts that could bring in the bucks for their budgets (and sweet cars and houses) rather than crimes of violence. Law enforcement agencies are often handed over the goods before ever proving there's been a crime, even sometimes when the charges are dropped. Those targeted by asset forfeiture have to prove their innocence in order to get their property back.

While many asset forfeiture regulations are hammered out at the state level, the federal government plays a huge role in encouraging this behavior. The Department of Justice's Equitable Sharing Program, established in 1984, pushes for local agencies to participate in joint investigations with them in exchange for receiving a share of the assets seized. These assets then go directly to those law enforcement programs. More than 7,000 law enforcement agencies participate in this program, and more than $2.7 billion has been shared with law enforcement agencies since 2009.

But according to the Institute for Justice, a non-profit legal group devoted to fighting misuse of asset forfeiture policies, 80 percent of the people who have been targeted by federal civil asset forfeiture programs were never even charged with a crime. And because the seizure process is "civil," not criminal, it's nothing like defending against criminal charges, and doesn't impose the same burden of proof on the government. The asset forfeiture process is full of complicated rules that pretty much require legal representation. Thus, it becomes a way not to target rich drug lords, as the government would undoubtedly want us to believe, but smaller, poorer businesses and citizens who lack the resources to stand against this juggernaut.

Credit: Defence Images / photo on flickr

The Institute for Justice has defended small restaurant owners who have had their bank accounts seized by the IRS because their frequent small cash deposits mimicked methods used by those trying to avoid tax reporting requirements, even though they hadn't done anything wrong. They've defended small hotel owners when the federal government tried to take their property on the basis of drug crimes committed by their customers on the premises.

In an investigative series beginning in September, The Washington Post highlighted the law enforcement culture that developed to take advantage of these tools to grab money and assets from the citizenry whenever possible. Average Americans recounted their tales of run-ins with the police, typically while traveling, and having their money and property taken despite having committed no crime.

Though the misuse of civil asset forfeiture is getting more attention, it hasn't really led to much reform. A recent White House report of programs from the Department of Justice that work with local law enforcement agencies noted that only five of the thousands of departments that participate in the asset forfeiture fund have ever been booted from the program for violations.

Reform of the Equitable Sharing Program is possible, though, and the next Congress should use the increased attention and increased skepticism of the drug war to push it through. Sen. Rand Paul (R-Ky.) has already gotten the ball rolling with the Fifth Amendment Integrity Restoration (FAIR) Act. Here's how he describes the legislation:

The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property. State law enforcement agencies will have to abide by state law when forfeiting seized property. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General's Asset Forfeiture Fund to the Treasury's General Fund.

"The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime. The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime," Sen. Paul said.

It doesn't eliminate asset forfeiture entirely, and unfortunately Paul's proposal still doesn't increase the forfeiture burden of proof to the same "beyond a reasonable doubt" threshold required for criminal convictions. It would still be easier to take a citizen's belongings than to actually convict him or her of a crime under this law. But the legislation would completely demolish law enforcement agencies' incentives for looking for any reason possible to invoke asset forfeiture by taking the rewards away from them.

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  1. Equitable sharing makes it literally impossible for states to reform their own civil forfeiture laws. The Feds just come in to work with the local cops, shout “Supremacy Clause,” and that’s it.

    Most of the abuse happens by local departments, but reform is impossible until equitable sharing is stopped.

  2. It’s a good start. But more could also be done at the local level. City and County officials always seem to forget them control the police department, not the other way around. I’d like to see a push in cities and counties to prohibit the use of federal asset forfeiture as a tool by police.

    Yes city council members, you can tell the police department certain things are out of bounds for them.

  3. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.

    I’m not sure that this will reduce the incentive to steal from innocent civilians. It seems to me that redirecting the funds from seized assets into the Treasury’s General Fund merely increases the number of politicians and civil servants who would be interested in seizing property.

    The only time that property should be seized is as reparation to the victims of the crime. Since most of the crimes currently used as an excuse to seize property are crimes against the state, the state has extreme incentive to take all they can get.

    The only way to really solve this problem is to get rid of crimes against the state.

  4. “?Ending Incentives for Civil Asset Forfeiture”

    No, you don’t end the incentives. You end asset forfeiture altogether. Period.

    1. I do not understand (well, actually I do, of course) how anyone in his right mind could think asset forfeiture in the absence of a conviction can withstand any Constitutional, legal, or moral test. How can it possibly be legit under the fifth amendment?

      We may not live in a hard police state a la Nazis or Communism. But it sure as hell is some lesser kind of police state, and as long as things like asset forfeiture persist, we are just getting worse.

      1. It shouldn’t. But some enterprising lawyer back in the day convinced the Supremes that it is actually an action against the property — which is somehow liable for the defendant’s alleged and unproven criminal activities — and not the defendant. That’s why asset forfeiture cases have names like Unites States v. 2004 Chevrolet Tahoe.

        1. And that is a patently absurd concept on it’s face – as are many other things rubber stamped by the SCOTUS over the years.

          Rather than hold the line against tyranny, the courts have more often than not been willing enablers of it.

        2. I would like to think that there’s language in the FAIR Act that outlaws “bringing a civil or criminal suit against an object” or anything that’s not a human being. That’s a loophole begging to be closed.

          1. In rem actions do have a place in civil law. The process is just abused by State asset forfeiture.

  5. Here’s my proposal for asset forfeiture reform:

    (1) You can’t seize anyone assets until they have first been convicted of a crime, and then only if the assets are proven, beyond a reasonable doubt, of being the proceeds of crime.

    (2) Assets seized go to pay down state debt, if seized by the state, or federal debt, if seized by the feds.

    1. Number 2 is a waste of words. Money is fungible.

    2. There’s a big difference between “seizure” and “forfeiture”. I don’t think we should completely stop the State from seizing property used in a crime before conviction as long as there’s probable cause (yes, I know this is abused and should be reformed, as well). Forfeiture — where the property is lost forever to the person — is the area that’s being abused and should be greatly tightened.

      #1 is the law for forfeiture in exactly 3.5 states (CA requires beyond a reasonable doubt for some types of property but only “clear and convincing” for others).

  6. The profit motive from the government looting its own citizens is a feature of asset forfeiture, not a bug.

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