Civil Liberties

The Twilight of Asset Forfeiture?

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2018 was a bad year for civil asset forfeiture, the infamous practice by which police can seize property even if the owner is not charged with a crime.

In late summer, Philadelphia settled a federal class-action lawsuit over its aggressive asset forfeiture program. (How aggressive? One 78-year-old pensioner had $2,000 seized after police found her possessing a small amount of marijuana, which her retired husband used to alleviate his arthritis.) The city agreed to drastically curtail when and how it seizes property from residents and to set up a $3 million fund for victims of its sticky-fingered cops.

Asset forfeiture will continue in Philadelphia, albeit in a limited form. But the salad days when police and prosecutors could seize 300 to 500 homes a year, according to the lawsuit, are now over.

Earlier in the summer, a federal judge struck down Albuquerque's asset forfeiture program, ruling the city "has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years."

The U.S. Supreme Court, which previously seemed reluctant to interfere in such cases, has agreed to consider an asset forfeiture challenge out of Indiana. Arch-conservative Justice Clarence Thomas also sharply criticized the practice in a 2017 dissent in a different case. "These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings," he wrote.

The increased willingness of federal judges to consider the perverse profit incentives created by asset forfeiture, together with the possibility of a Supreme Court ruling on the issue, raises a real question: Are we seeing the twilight of such programs in the United States?

During the last five years or so, more than half of states have passed some form of asset forfeiture reform, limiting what was once a free-for-all cash grab benefiting law enforcement. In places such as Mississippi the reforms were modest—new annual reporting requirements, for instance. New Mexico and Nebraska, however, now mandate criminal convictions before property is forfeited. Most states have landed somewhere in the middle, adding procedural protections for property owners and rebalancing the burden of proof in forfeiture hearings.

Until recently, a major roadblock to all these reforms was Jeff Sessions. The former U.S. attorney general rolled back Obama-era restrictions and emboldened state and local law enforcement to ramp up seizures—and bypass stricter state laws—by partnering with federal authorities. How much longer that loophole remains open depends on Congress.

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  1. “New Mexico and Nebraska, however, now mandate criminal convictions before property is forfeited.”

    Why is that not the case everywhere? WHY is this seemingly asking too much?

    Judging by past experience, as soon as they cut this ugly tree back to its roots, in another few years it will have sprouted back and be a full-grown ugly deformed bush-tree-thingee…

    It needs torn out at the roots, and the surrounding earth needs to be salted or maybe even nuked!!!!

    1. deformed bush-tree-thingee

      Don’t worry, libertarians will stand by with our woodchippers. (Try to take mine, statists, just promise me you’ll let me know how that worked out for you.)

  2. Or, you know, courts could just end the absurd practice of prosecuting property when the owner of said property is readily identifiable.

    1. They can’t do that — it would force them to admit that their entire system of traffic enforcement with cameras was illegal. Way too big of a pile of money in the form of voluntary taxes that they will never give it up.

  3. The Twilight of Asset Forfeiture?

    Now let’s all hold our breath and see who asphyxiates first.

    1. I took the “Twilight” part of the headline to refer to shiny-looking and totally lame vampires, which is apt description of those benefiting from asset forfeiture.

      As for Sessions’ role in all this, why am I not surprised? Good thing he got canned.

      1. Unfortunately, his successor is no better on this issue.

  4. “has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years.”

    Why do I get the feeling that the ‘without meaningful oversight’ is the operative part of the sentence?

  5. The bad year for asset forfeiture was 2008, when G. Waffen Bush stood blinking atop the ruble of a coercively collapsed mortgage-based derivatives market whose liquidity crisis brought on by confiscations over plant leaves drained the foundations of the nation’s credit structure. As in 1932, state governments responded by quickly enacting repeal measures to declaw the menace, and booted Republicans out of office with no-nonsense determination. What we are seeing now is the dawning realization that you can’t have your economy and let fanatical looters confiscate it too.

  6. Excerpt from the novel, “Retribution Fever”:

    The obverse had been a practice known as “civil forfeiture”. Innocent until proven guilty was a bedrock principle of U.S. justice. In most states, if a police officer merely suspected that property was connected to a crime, he could seize it without any actual evidence of wrongdoing. Through a federal program called “Equitable Sharing”, police could confiscate eighty percent of seized value. To recover that which was rightfully theirs, Americans must have proven that the property had no connection to a crime.

    [Optional Note for Readers: The practice had begun with the British several hundred years ago in order to deal with pirates beyond the reach of maritime law, judging the goods guilty of the crime, if not the accused. During the War Between the States, the Union adopted the practice to confiscate Northern property owned by Southerners. In 1921, the U.S. Supreme Court in J. W. Goldsmith, Jr.-Grant Co. v. United States endorsed the practice. Early on, however, it dealt more with payment of customs-duties and rarely applied to ordinary citizens until 1984 when Congress created the “Assets Forfeiture Fund” within the Department of Justice supposedly to impede drug-trafficking. The program generalized from there, as do such programs fostering theft by government.]

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