Civil Asset Forfeiture

Ending Civil Asset Forfeiture Should Be a Bipartisan Project

Some states have taken action. It's time for the federal government to do the same.

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During the seemingly endless run-up to the last election, my partisan friends would often say to me, "politics is binary." Their point is that voters only have two serious choices in any election, the Democrats or the Republicans. We need to pick a side and then, apparently, serve as cheerleaders for whatever that side is doing.

As a libertarian who doesn't like either choice, I often scream in frustration. Baltimore Journalist H.L. Mencken succinctly captures my view of the reigning Democrats and Republicans: "Under democracy one party always devotes its chief energies to prove that the other party is unfit to rule—and both commonly succeed, and are right." He believed that our political history is "simply a record of vacillations between two gangs of frauds."

Few issues capture the fraudulent nature of modern politics more than civil-asset forfeiture. If I had a dime for every time a national politician mentions the Constitution, I could retire tomorrow along the California coast. My pockets would be empty if I collected that dime every time those same politicians demanded the reform of that forfeiture system that wantonly violates the Constitution's principles.

Civil forfeiture laws allow police agencies to seize Americans' homes, cars, and cash upon the suspicion that someone used the property in criminal activity—and without due process afforded to its owner. The courts file cases with odd names such as, "The United States Government v. a 2017 Ford Explorer." The government targets the property—then forces owners to prove their innocence to get it back (and it's a long and costly process to do so).

One need only do a little Google research to find endless appalling examples. In one Anaheim case, city and federal officials attempted to seize a $1.5 million commercial building after cops accused one of the owner's tenants of illegally selling $37 worth of marijuana. Prosecutors ultimately dropped that case amid bad publicity, but California officials grab $100 million a year in such takings.

Most comes from ordinary (and usually low-income) people, not drug kingpins. If, let's say, someone steals your $40,000 SUV and uses it in a drug deal, police can keep the vehicle because it—and not you—was involved in a crime. If you're pulled over for speeding and police find $10,000 in cash in the glove compartment, they can assume that the money came from illegal activity and take it—even if it came from a legitimate transaction.

Many states have passed asset-forfeiture reform on a bipartisan basis. Recently, Arizona's House of Representatives passed, on a 57-2 vote, a bill that would require that police obtain a conviction for an underlying crime before depriving people of their property. California passed a similar law in 2016. The Legislative Analyst's Office has struggled to monitor its results because police agencies haven't fully complied with its reporting requirements.

Unfortunately, state reforms aren't enough because police agencies have concocted a clever workaround. They take people's assets, then "partner" with federal agencies, which operate under a much broader standard. Then they split the loot. The problem is that the system provides perverse financial incentives.

"In the federal system and most states, the property that is seized and forfeited is not delivered to the federal or state treasuries, but instead is kept by the law enforcement agencies themselves," argued a variety of liberal and conservative groups (including my employer) in a recent letter to Congress. They called for simple reforms—sending proceeds to the general treasury, eliminating partnering programs, and adding judicial oversight.

Both parties have terrible records on the topic. Despite his support from progressives who champion criminal-justice reform, President Joe Biden is the architect of the key drug-war law that set asset forfeiture loose on the general public. The Trump administration's last two attorney generals (William Barr and Jeff Sessions) argued for expanded use of it. Democrats and Republicans are frauds on this issue, so it's time for public pressure.

Police agencies insist that civil forfeiture laws are an important tool in fighting against drug cartels, but they rely solely on conjecture rather than data to make that case. When California was debating its reform, its police opponents publicly opposed it mainly because of what it might do to their budgets. Cry me a river on that one.

"It may be the oldest question in politics: what makes government legitimate?" wrote Timothy Sandefur, in a new report about asset forfeiture for the Arizona-based Goldwater Institute. "Or as the Christian thinker St. Augustine put it some 1,500 years ago, what distinguishes a state from a gang of criminals?…A government serves justice, not the private advantage of those in charge."

If partisans ever set aside their political grudge matches for a moment, they might find common ground on reforming this unconstitutional system. Our political system might be binary, but here's a good chance for some singularity.

This column was first published in The Orange County Register.

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  1. The problem is that the system provides perverse financial incentives.

    The problem of government in a nutshell. Government does not have the same goals and incentives as the private market, they don’t pay any price for doing stupid shit, they’ve got no skin in the game, they don’t have to set priorities. It’s why no government project in the history of mankind has ever come in on time, under budget, and delivered on its promises of benefits – it’s not their money they’re spending and it’s not like the “customer” can take his business elsewhere if he’s unsatisfied with the service.

  2. Any law – including the supreme law of the United States – is totally meaningless if there is not a healthy risk of penalty to deter law breakers. Yes, it’s illegal but there is no enforcement and no substantial penalty = no deterrent effect. The premise of Law & Order.

    The “Judicial Review” process simply needs more teeth, enforced by the Judicial Branch. What is the deterrent effect? Congress needs to give judges more authority. Any official can violate the U.S. Constitution and that official’s legal bills are usually paid by taxpayers and usually the worst penalty is that the judge suppresses the evidence illegally obtained. No personal risk of jail or personal finances by the law breakers. Even if wrong, the perpetrator has no remorse and has learned no lessons.

    On Civil asset forfeiture, the crime victim may be bankrupted or ruined. The official that illegally stole the money merely has to return the stolen goods.

    The real problem is that this creates an “incentive” to violate constitutional rights instead of creating a deterrent-effect for the perpetrators. Since most victims may not fight it, the law breakers are rewarded and incentivized to do it again.

  3. How long until the far left views civil asset forfeiture as a means to an end? Political enforcement instead of law enforcement?

    1. How long? I’m going with at least 20 years ago.

  4. Steven, your column highlights why this is indeed a bipartisan issue, and there is no appetite to change this system of grift.

  5. While I wholeheartedly agree with ending civil asset forfeiture against private citizens, I suggest that it is the tool that is uniquely suited to bringing accountability for their multitudes of misdeeds to government bad actors. It would be quick, while other tools are endlessly stalled by government protecting its own. It would properly shifts some of the burdens from oppressed private citizens with meager means to the offending government agents and entities with the entire state protecting them. It could access those extravagant government pensions, for which government employees live, to both punish them where they will, for once, feel it and to help compensate their victims. It would be some justice both long over due and poetic, especially when turned around on the very police and prosecutors that have so abused it in its current oppressive form.

  6. Stop calling robbery “Ending Civil Asset Forfeiture”.

  7. > Unfortunately, state reforms aren’t enough because police agencies have concocted a clever workaround. They take people’s assets, then “partner” with federal agencies, which operate under a much broader standard.

    This is a cop out. If the states that passes these laws were serious about it, they’d charge the cops who participate in the “workaround” with theft.

  8. The widespread police practice of “asset forfeiture” was actually outlawed in the English Bill of Rights of 1689, which was in force in America until 1783. It affirmed, “That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void” under common statue law.

    In that document some of the reasons cited for removing James II from power were because under his rule “excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects; And excessive fines have been imposed; And illegal and cruel punishments inflicted…All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.”

    We are long overdue for a “Glorious Revolution” of our own. Let us hope it will be as bloodless as England’s was in 1688.

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