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.
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.