Congress Tries Again To Reform Civil Asset Forfeiture Abuses

Just about everybody agrees the practice is legalized theft, but cops and prosecutors oppose change.

Years after "civil asset forfeiture" became synonymous in many minds with legalized theft, the practice of seizing money and property merely suspected of a connection to a crime remains a boil on the ass of American jurisprudence. Now, in a rare demonstration of cooperation across political divides, Democratic and Republican lawmakers have joined together to introduce legislation to reform the practice of civil forfeiture at the federal level. They are supported by a coalition of organizations that put aside ideological differences in an attempt to curb the dangerous practice. As encouraging as the bill's prospects appear, that this is not the first attempt to pass this legislation underlines the challenge of correcting government abuses.

"Today, U.S. Representatives Tim Walberg (R-MI) and Jamie Raskin (D-MD) reintroduced the Fifth Amendment Integrity Restoration Act (FAIR Act), a comprehensive reform to our nation's civil asset forfeiture laws," the two lawmakers announced in March. "The FAIR Act raises the level of proof necessary for the federal government to seize property, reforms the IRS structuring statute to protect innocent small business owners, and increases transparency and congressional oversight."

Giving Forfeiture Targets Their Day in Court

The FAIR Act sets a higher bar for seizing private property, but still allows for civil forfeiture in the absence of a criminal conviction. The legislation requires:

"If the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that…there was a substantial connection between the property and the offense; and the owner of any interest in the seized property—(i) used the property with intent to facilitate the offense; or knowingly consented or was willfully blind to the use of the property by another in connection with the offense."

The bill requires that seizures be conducted in court rather than through administrative processes and also guarantees legal representation for federal forfeiture targets.

The FAIR Act isn't a perfect bill. Many reformers will object that forfeiture should require the criminal conviction of the person whose money and property is being taken. Draining somebody's bank account and nabbing their car keys may not be as dramatic as throwing them in a prison cell, but it's a harsh punishment all the same and should require full due process. Still, some improvement is better than none for a practice that has largely served as an exercise in legalized highway robbery.

Abusive to Its Core

"Police abuse of civil asset forfeiture laws has shaken our nation's conscience. Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime," the ACLU points out in a summary of the practice. "Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government."

"Since 2000, states and the federal government have forfeited at least $68.8 billion—that we know of," the Institute for Justice (I.J.) reported in 2020. "Not all states provided full data, so this figure drastically undercounts property taken from people through forfeiture."

Last year, Reason's Eric Boehm noted that FBI agents rifled through safe deposit boxes in Beverly Hills, California, with the admitted goal of seizing any cash and valuables found therein. Nevertheless, a federal judge signed off on the raid since the agents came up with a plausible additional justification.

Reform: Something Everybody Can Agree On

With the ACLU and I.J., organizations supporting Raskin and Walberg's FAIR Act include Americans for Prosperity, Competitive Enterprise Institute, Drug Policy Alliance, Due Process Institute, Goldwater Institute, Law Enforcement Action Partnership, Leadership Conference on Civil and Human Rights, NAACP, National Association of Criminal Defense Lawyers, National Federation of Independent Business, National Motorists Association, National Taxpayers Union, and the R Street Institute. The coalition wrote an open letter to House Judiciary Committee Chairman Jim Jordan (R–Ohio) and ranking Democrat Jerrold Nadler (D–N.Y.) that notes the legislators' support for this bill when it was introduced in the past and urges their continued backing:

"The FAIR Act is necessary because the current law of civil asset forfeiture allows the federal government to seize—and keep—cash, cars, homes and other property that law enforcement merely suspects is related to criminal activity. The government need not ever charge the property owner with a crime, much less secure a conviction, for it to seek forfeiture, and the procedural deck is stacked against private citizens who challenge the government. This system is unjust on its face, has a disproportionate impact on poor and otherwise disadvantaged communities, and undermines public respect for law enforcement."

Sponsored by members of both major parties and supported by groups from across the political spectrum, you'd think the FAIR Act would be a good candidate for passage. Except, this modest reform measure is being reintroduced after failing in the past despite wide support. I.J. announced a similar coalition in 2021 and the ACLU endorsed the FAIR Act back in 2015. Most everybody agrees that civil asset forfeiture reform is necessary, but it remains an uphill slog. That's because there is an entrenched law-enforcement lobby that wants seizure of money and property to remain easy.

Cops for Legalized Theft

"Civil asset forfeiture—which allows the government to take property supposedly linked to crime without charging, let alone convicting, the owner—exploded after Congress started letting law enforcement agencies keep the loot in the mid-1980s," Reason's Jacob Sullum wrote in 2015. "Many states followed the federal government's example, giving police and prosecutors a financial interest in forfeiture by awarding them anywhere from 45 percent to 100 percent of the money it generated."

That empowered a powerful bloc supporting the status quo at the state and federal level, and it's not shy about calling out opponents. In Missouri, supporters of forfeiture reform were labeled "anti-police and soft on the war on drugs," St. Louis Public Radio reported in 2019. That was enough to scare away many lawmakers who traditionally defer to cops and prosecutors.

Now, with crime concerns back in the news, legislators are unlikely to be less sensitive to criticism of their criminal justice bona fides than in the past. No matter that just about everybody who studies the issue is horrified by civil asset forfeiture, its prospects have not become easier amidst headlines about muggings, shoplifting, and seemingly random violence.

But, however challenging the political environment might be for reformers, Americans concerned about law and order should remember that civil asset forfeiture is just theft by another name. Ending the practice is one way of taking a bite out of crime.