Civil Asset Forfeiture

Restrict Asset Forfeiture

It's time to do something about police seizures of property from innocent people.

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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.

 

NEXT: What did Professor Amy Coney Barrett say about NFIB v. Sebelius?

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  1. Well, all the people in trouble with the cops (or needing their property stolen from them) are Marxists anyway!

    Right, Nadless the Nardzi, Nasty NAZI?

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    2. Fuck off, Sqrlsy

      1. http://www.openculture.com/2016/03/edmund-burkeon-in-action.html

        “The only thing necessary for the triumph of evil is for good men to do nothing.” ― Edmund Burke

        NAZIs have, over the years, taken over more and more of the comments here. The normalization of NAZIism, and equating it in ANY way, with libertarian thinking, is something that I will NOT put up with, without protest!

        1. “SQRLSY One
          July.2.2020 at 5:11 pm
          Port-a-potties ARE buffets”

          LOL

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        2. Fuck off, Sqrlsy.

        3. Fool me once, shame on a NATSIE.
          Fool me twice, squirrel up a tree.

          1. You’re a poet!
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            AND, your feet are Longfellows!

    3. Not Kyle Rittenhouse. He’s a hero.

      Only Marxists who love pedophiles think he is a kid who was in over his head, ended up killing two people, and is now in a lot of trouble.

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  2. Could the Breonna Taylor killing be because Louisville makes good money off CAF? It appears it might have.

    https://kycir.org/2019/09/23/conviction-or-not-seized-cash-is-cost-of-doing-business-in-louisville/

  3. Good luck getting police reform now, Antifa/BLM have set back that movement at least 20 years. You either support the communists or you support the fascists, get the fuck outta here with your nuance.

    1. Judging from the results it’s almost like police demiliterization and reform was never the goal.

    2. lol… fascists are socialists which are directly relative’s of communists.

      fascists – champions of race and religious uniformity
      socialists – champions of wealth uniformity
      communists – champions of property uniformity

      ALL fit into the box of gun-enforced “uniformity” demands enforced by authoritarian death-sentences.

      Sadly the term Individualist has disappeared from public radar.

  4. The police (and all Gov workers) need to be treated as the moron teens they are. The courts gave them a cool toy in civil asset forfeiture and the behaved like entitled teens and ruined it. This also applies to qualified imunity.

  5. We should restrict asset forfeiture from guilty people too, not just innocent people. Assets should only be forfeited if needed to pay legally imposed fines or restitution to victims.

    1. I’d add “forfeiture of ill gotten gains” to the list.

  6. Income taxes are asset forfeiture.

    1. I’m not sure how long the USD will be an asset.
      But I’d say there is a difference between a man’s creation and a USD.

  7. It’s a good idea to eliminate any potential for abuse because democrats will always take that advantage.

  8. It’s time to do something about police seizures of property from innocent people

    Government seizes tens to hundreds of thousands of dollars every year from most working Americans. That seems like a much bigger issue, something that is not only unjust and hurts the individual, but also hurts others.

    Why isn’t Reason publishing an article every week about how we should abolish the income tax?

    1. Trump is showing us the way, on this “taxation is theft” thing, by paying FAR-FAR less taxes than us stupid, benighted fools!

      https://www.cnn.com/2020/09/28/politics/donald-trump-taxes-election-2020-joe-biden-debate/index.html

      Tax bombshell reveals Trump’s image is a sham

  9. “That practical reality contradicts the foundational principle that a person is innocent—and thus shall not be punished—until proven guilty.”

    How many people truly believe this? Clearly none of the righteous do, especially those who violate their ideological morality. For conservative puritans, anyone accused of drug use or sales is guilty. For Title IX feminists, anyone accused of campus sexual assault (and those who question what constitutes assault) is guilty. For the new progressive race-baiters, anyone not marching in solidarity–or even anyone not of the self-proclaimed oppressed race–is guilty.

    Like most other revolutionary ideas of the Enlightenment, which suggested that people should strive to be better than primitive human instinct and superstition, objective assessment of guilt and innocence may have been a passing fad.

  10. “The great masses of men, though theoretically free, are seen to submit supinely to oppression and exploitation of a hundred abhorrent sorts. Have they no means of resistance? Obviously they have. The worst tyrant, even under democratic plutocracy, has but one throat to slit. The moment the majority decided to overthrow him he would be overthrown. But the majority lacks the resolution; it cannot imagine taking the risks.” ~ H. L. Mencken (1926). “Notes on Democracy,” p. 50, Alfred A. Knopf
    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?… The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt! If…if…We didn’t love freedom enough. And even more – we had no awareness of the real situation…. We purely and simply deserved everything that happened afterward.” ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956

  11. Asset Forfeiture, as it works in most jurisdictions, is in plain English,
    Theft Under Color of Law. The above conclusion is couched in polite English, to avoid offense to more sensitive readers.

  12. Restricting Asset Forfeiture, as it usually operates is no where near sufficient. Punishment, I note that Asset Forfeiture is punishment of the individual with guilt of the individual not demonstrated, is anathema to what supposedly is one of the basic tenets of our society, Innocent Until Proven Guilty.

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  15. American Citizen : “Why did you throw my grandmother out on the street and steal her home?”

    American Cop : “We do it for the children.”

  16. Stop.
    the.
    Drug.
    War.
    Now.

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