Restrict Asset Forfeiture

In this month's issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer's tumultuous protests productively. Check out Damon Root on abolishing qualified immunity, Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, C.J. Ciaramella on regulating use of force, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

"Through their impact on property rights, the drug forfeiture laws have already eroded fundamental freedoms. The fact that this has occurred so easily, with barely a whimper of protest from the courts and virtually no opposition from thoughtful commentators, gives real credence to [Milton] Friedman's warnings about where the war on drugs may take us."
Stefan B. Herpel
"United States v. One Assortment of 89 Firearms"
May 1990

Elizabeth Young's son was arrested in 2010 after selling $90 of marijuana on the front porch of her Pennsylvania home. At the time, her son was unaware that his buyer was actually a police informant. A month after the arrest, prosecutors filed a petition to seize Young's home and vehicle. The 75-year-old West Philadelphia grandmother hadn't committed the offense, nor was she ever charged with a crime. Yet the state's civil asset forfeiture rules gave prosecutors free rein to take her property.

Like many other abuses justified by the drug war, civil asset forfeiture has expanded government power over time. It has bestowed upon police an all-but-limitless authority to steal private property without cause or accountability, eroding Americans' "fundamental freedoms…with barely a whimper of protest from the courts," as Detroit attorney Stefan B. Herpel put it in Reason 30 years ago.

As Herpel observed then, civil asset forfeiture can be traced to a medieval belief that objects can cause death and other harm of their own accord. Today's civil asset forfeiture proceedings are in rem ("against a thing"), explains the Institute for Justice, a public interest law firm that has litigated a number of asset forfeiture cases and filed an amicus brief in support of Young. Just as superstitious beliefs in the Middle Ages allowed kings to seize supposedly evil property that was found to have caused someone's death, the drug war has allowed law enforcement to seize houses, cars, life savings, and other private property. These assets pad the budgets of police departments and prosecutors' offices, though law enforcement insists the purpose of seizures is to disrupt organized criminal activity. This centuries-old understanding of forfeiture is reflected in the titles of civil asset forfeiture cases. Young's case, for example, was filed under Commonwealth of Pennsylvania v. 1997 Chevrolet and Contents Seized From James Young.

Civil asset forfeiture does not usually require evidence, a conviction, or even probable cause to believe the owner has committed a crime. It relies merely on the suspicion that an object is connected to criminal activity. Which is, in many modern cases, the sale of drugs.

Herpel's 1990 commentary about the courts' complicity still applies. Should an owner wish to recover his assets, he must do so in a trial after the warrantless seizure has taken place, during which the government officially has the burden of proving a criminal nexus. But as Herpel noted in 1990, as Young discovered in the 2010s, and as many Americans still experience, asset forfeiture effectively shifts the burden of proof from the government to the person whose property stands accused. That practical reality contradicts the foundational principle that a person is innocent—and thus shall not be punished—until proven guilty.

In 2015, the Institute for Justice found that the Justice and Treasury departments took in $29 billion in forfeiture funds from 2001 to 2014. And in the 14 states where forfeiture data were available, forfeiture revenues more than doubled from 2002 to 2013.

Civil forfeiture was used more frequently than criminal forfeiture, which requires a conviction. From 1997 to 2013, civil seizures accounted for 87 percent of the Justice Department's forfeitures. In addition, 88 percent of the department's forfeitures were administrative, meaning the objects were assumed guilty by default when a property owner did not challenge the seizure in court. One barrier to challenging a seizure, of course, is the inability to afford a lawyer, a problem exacerbated when a person has already been stripped of her property.

When Young's case reached the Pennsylvania Supreme Court in 2017, the justices ruled that forfeited property must be "significantly utilized" in the commission of a crime and that the proportionality of a forfeiture depends on the owner's culpability. Publicity regarding forfeiture abuse also has led to statutory reforms. Since 2014, 35 states have enacted reforms such as demanding forfeiture data, diverting proceeds from law enforcement agencies, raising standards of proof, and requiring a criminal conviction.

A federal civil asset forfeiture reform bill was reintroduced by Sen. Rand Paul (R–Ky.) in June, adding to the list of reforms inspired by the George Floyd protests. Paul's Fifth Amendment Integrity Restoration Act would eliminate the Justice Department's Equitable Sharing Program, which creates a loophole allowing local agencies to subvert tough state restrictions on forfeiture by sharing seized assets with the federal government. The bill also requires the government to present "clear and convincing" evidence that seized property was used in connection with a crime and to provide counsel for property owners.

Reform is possible, but it can be hampered by law enforcement's unwillingness to let go of a reliable cash cow. New Mexico, whose forfeiture laws are considered to be the best in the country, requires a conviction prior to seizure and directs seized property to the state's general fund. Albuquerque tried to ignore those rules, then tried to moot a lawsuit against its forfeiture program by returning a vehicle it had seized, but a federal judge allowed the case to proceed. The program was deemed unconstitutional, and the city finally ended it in 2018, three years after the state legislature passed its gold-standard reform.

Removing these incentives to engage in policing for profit would begin to restore some long-eroded freedoms.