Drug War

The Other Side of Legalized Theft

Civil forfeiture encourages cops to loot first and ask questions never.


During a meeting with county sheriffs in February, Donald Trump was puzzled by criticism of civil asset forfeiture, which all the cops in the room viewed as an indispensable and unobjectionable law enforcement tool. "Do you even understand the other side of it?" the president asked. "No," one sheriff said, and that was that.

Trump might get a more helpful answer if he asked Rep. Jim Sensenbrenner (R-Wis.), who last week reintroduced a bill aimed at curtailing civil forfeiture abuses. As Sensenbrenner observed, "These abuses threaten citizens' Constitutional rights, put unnecessary burdens on innocent Americans, and weaken our faith in law enforcement."

Civil forfeiture lets the government confiscate property allegedly linked to crime without bringing charges against the owner. Since law enforcement agencies receive most or all of the proceeds from the forfeitures they initiate, they have a strong financial incentive to loot first and ask questions never, which explains why those sheriffs were not eager to enlighten the president about the downside of such legalized theft.

A new report from the Justice Department's Office of the Inspector General (OIG) highlights the potential for abuse. Between fiscal years 2007 and 2016, the OIG found, the Drug Enforcement Administration (DEA) took $4.2 billion in cash, more than 80 percent of it through administrative forfeitures, meaning there was no judicial oversight because the owners did not challenge the seizures in court.

Although the DEA would argue that the lack of challenges proves the owners were guilty, that is not true. The process for recovering seized property is daunting, complicated, time-consuming, and expensive, often costing more than the property is worth.

Consider Charles Clarke, a college student who in 2014 lost $11,000 in savings to cops at the Cincinnati/Northern Kentucky International Airport who said his suitcase smelled of marijuana. No contraband was found, and as is typical in such cases the allegations in the federal seizure affidavit were absurdly vague, merely asserting that the money had something to do with illegal drugs.

Clarke, who admitted smoking marijuana but denied selling it, ultimately got his money back with interest. But it took two years, and it was possible only because the Institute for Justice represented him for free.

Sensenbrenner's bill—which has 15 cosponsors, including House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and six other Republicans—would help forfeiture victims like Clarke by allowing them to recover attorney's fees after a settlement and providing legal representation for those who cannot afford it. Instead of requiring owners to prove their innocence (as the law currently demands), the bill would require the government to disprove it (as in a criminal trial). The bill also would increase the burden of proof in forfeiture trials from "preponderance of the evidence" to "clear and convincing evidence."

Although civil forfeiture's defenders argue that it helps destroy drug trafficking organizations, the OIG found that the Justice Department "does not measure how its asset seizure and forfeiture activities advance criminal investigations." Looking at a sample of 100 cases where the DEA seized cash unaccompanied by drugs without a warrant, the OIG found that only 44 led to arrests, advanced existing criminal investigations, or prompted new investigations.

"Without fully evaluating the relationship between seizures and law enforcement efforts," the OIG warns, "the Department cannot effectively assess whether asset forfeiture is being appropriately used, and it risks creating the impression that its law enforcement officers prioritize generating forfeiture revenue over dismantling criminal organizations." The report notes that the Justice Department's incuriosity about the circumstances and consequences of forfeitures also means it has little sense of "the extent to which seizures may present potential risks to civil liberties."

Sensenbrenner's bill would help clear up the mystery by creating a publicly available forfeiture database and requiring the OIG to audit a representative sample of forfeitures each year. Digging into those details will make it harder for those who benefit from civil forfeiture to pretend they do not understand the other side of it.

© Copyright 2017 by Creators Syndicate Inc.

NEXT: IRS Seized $17 Million From Innocent Business Owners Using Asset Forfeiture

Drug War Due Process Property Rights Drugs Civil Asset Forfeiture

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

20 responses to “The Other Side of Legalized Theft

  1. What do you call cops that steal? You call them criminals.

  2. Hey, wouldn’t it be great if the NBA, NCAA, Steve Van Sandt, and every other state, organization and celebrity boycotting North Carolina over transgender bathrooms also boycotted any state that allows civil asset forfeiture, which is just as much a civil rights violation, likely affects many more people, and disproportionately impacts the minorities that these organizations claim to care so deeply about?

    Yeah, I know. Keep dreaming.

    1. That would be nice but a quick glance at wikipedia suggests there would be next to no states to do business in at all. Much easier (logistically speaking) to hammer on NC.

  3. Where in the Constitution does it allow for civil forfeiture? The Constitution does restrict property being seized without just compensation.
    Amendment V (1791)- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    1. Social Contract Theory, like the Penumbra of Rights theory.

      Same justification for Eminent Domain.

      Ipse Dixit, which is Latin for Fuck You, That’s Why.

    2. Where in the Constitution does it allow for civil forfeiture? The Constitution does restrict property being seized without just compensation.

      I think this yet another example of something covered by the invisible FYTW clause. It’s written on the back in invisible ink.

    3. You should have also bolded the be deprived of life, liberty, or property, without due process of law part.

  4. Extra-judicial asset forfeiture is just so ridiculously obviously wrong that I can not understand how anyone could support it with a straight face. When I run across topics like this I am reminded of the faulty nature of most peoples’ moral compasses.

    1. It’s not a moral compass, it’s immoral greed.

  5. A more subtle and pernicious example of civil asset forfeiture is a minor traffic code violation. What should be a $50 fine can easily turn into a $500 fine with the administrative add-ons. For many folk, and I’ve been there, it’s pay the rent first, pay the fine second, and eat Ramen noodles for a month. So a cop who makes a $100k a year and who can retire at 55 with a $90k a year pension can pull over a guy who makes $15 an hour on his way to work at the warehouse and fine him (500/15/8) 4 days pay. It’s not exactly the cop’s fault, he has many accomplices.

    The civil asset forfeitures both Jacob and I are talking about are below-the-belt punches.

    1. City Journal had a good article on this yesterday.

      While the base rate for his infraction was $100, he ultimately was on the hook for nearly $500 by the time state assessment fees ($100), county assessment fees ($70), court construction fees ($50), emergency medical-services fees ($20), and more got tacked on.

    2. So a cop who makes a $100k a year and who can retire at 55 with a $90k a year pension can pull over a guy who makes $15 an hour on his way to work at the warehouse and fine him (500/15/8) 4 days pay.

      And hopefully being pulled over doesn’t make him late for work, resulting in him being fired laid off.

  6. loot first and ask questions never

    That was good!

  7. Right, and it’s been going on in the land of the free for over twenty years. Nothing is going to change on this or any other important type of government over reach. NADA

  8. Asset forfeiture goes beyond what’s described in this article. Police impounded a $400 rope of mine during a noncriminal investigation, and refuse to give it back. It had nothing to do with the reason for the investigation but they will not return it. It’s just outright theft.

  9. Police seized a $400 rope of mine during a noncriminal investigation and refuse to return it. No reason, they just want to have it around.

    1. They illegally seized two pounds of weed from me after my late wife’s death. Never returned of course, I gots me a nice shiny criminal record tho.

      Fuck them and their law and order enablers.

  10. Civil asset forfeiture is basically just legalised theft by the cops.

    Like any other thief, those who do it should be in jail.

  11. Great article!

    What needs to be done is send ALL forfeiture money NOT to the department initiating the seizure, but somewhere else. We need to break the link between seizing the money and being financially rewarded for seizing the money…

    I can’t remember when I last read a Reason article which filled me with such hope.

  12. It’s not a moral compass, it’s immoral greed.
    strong quotes
    quotes about being strong

Comments are closed.