The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Asset forfeiture, drug legalization, and the mainstreaming of libertarian ideas


Sunday's New York Times article on the dangers of asset forfeiture abuse follows a major multi-part series on the same subject in the Washington Post. Last year, the liberal New Yorker also published a major article on the issue.

As both the Times and the Post emphasize, the present asset forfeiture system in many states allows law enforcement agencies to seize property even if the owner has not been convicted or even charged with any property. Often, the police then get to keep the proceeds from the seizures for themselves, creating a perverse incentive to seize as much property as possible, regardless of the guilt or innocence of the owners. In many cases, as the Post notes, owners have little or no opportunity to reclaim their property because the procedures are involved are difficult and time-consuming, and often too expensive for poor and lower-middle class property owners to afford.

As in the case of drug legalization, asset forfeiture reform is a cause long-championed by libertarians, which has recently hit the mainstream. The Institute for Justice, a prominent libertarian public interest law firm, has highlighted the issue for years, and is currently spearheading both legal and legislative challenges to the system. Similarly, libertarians have for decades advocated abolishing the War on Drugs; at times, they were almost the only ones doing so, with the exception of a few on the far left. But only recently has this idea begun to attract widespread mainstream public and elite support.

Obviously, the two issues are integrally linked. As the Post series notes, the War on Drugs is one of the leading causes of asset forfeiture abuse. The Post article correctly emphasizes that much of the seized property is taken as a result of law enforcement operations undertaken as part of the War on Drugs. The threat that the War on Drugs poses to the property rights of innocent people is yet another reason for conservatives, among others, to rethink their traditional support for it.

While libertarians have successfully helped put these issues on the political agenda, it remains to be seen whether they and their new allies on the left and right will be able to push through effective reforms. In both cases, there is a danger that newfound public interest in the issue will be quiesced by merely cosmetic changes that only marginally improve the situation. And, obviously, the majority of non-libertarians do not—so far—fully endorse the libertarian approach to these issues, which calls for the complete abolition of both civil asset forfeiture and the War on Drugs. Still, the two cases are dramatic examples of previously marginalized libertarian ideas becoming a part of mainstream political discourse.

NOTE: I have written amicus briefs on behalf of the Institute for Justice on various other property rights issues. But I have not been involved in their asset forfeiture cases.