Congress Must Reform Civil Asset Forfeiture
Civil asset forfeiture laws, which allow police officers to seize citizens' assets without charging them with a crime, have mutated from legitimate law enforcement tools used to combat the international drug trade and terrorism funding networks to near-ubiquitous funding mechanisms for local police departments. The new 114th Congress and state governments should make it a priority to restore the principle of innocent until proven guilty.
Civil forfeiture differs from criminal forfeiture. Under criminal forfeiture laws, property can only be confiscated after a party is found guilty in court. This makes sense — criminals should not keep the fruits of their crimes. But civil forfeiture can take place when the owner is not convicted of or even charged with a crime. Property can be held as guilty until the owner proves it innocent. All a police officer needs is suspicion based on a “preponderance of evidence” that some property was connected with criminal activity.
The value of assets seized, including cars, homes, boats, electronics, and jewelry, has ballooned from $407 million nationwide in 2001 to $4.3 billion in 2012. Over that time period, police have seized $2.5 billion in cash alone from almost 62,000 people without warrants or indictments, according to a Washington Post investigation.
To bypass laws that some states have to protect property owners, seized funds are often transferred to the federal government before being returned to local law enforcement. The Justice Department usually keeps 20 percent, while local law enforcement departments use remaining funds as they wish. As Columbia, Missouri police chief Ken Burton said, “It's kind of like pennies from heaven, you know. It gets you a toy or something you need, is the way we typically look at it.” One problem: These “pennies from heaven” are forcibly taken from individuals who are often are not guilty of a crime.
If police find large sums of cash on individuals, police can release suspects but keep their property. When done outside of police departments, this practice is called extortion. This kind of behavior is associated with the mafia or the Venezuelan government, not America.
It often makes little sense for individuals to fight to have their stolen property returned. Since the cases are civil, not criminal, there is no government assistance to defend oneself (or one's property). It is easier to let the police departments get away with theft than to fight to have unjustly stolen property returned.
Law enforcement has found a legal loophole around constitutional rights. Instead of charging owners of property, and having to prove guilt “beyond a reasonable doubt,” law enforcement goes after the property itself — which does not enjoy the same legal protection. Police argue that property — inanimate objects — took part in a crime, but it makes no sense to argue that a vehicle, home, or pile of cash willingly undertook criminal action.
In an attempt to return to sanity, Reps Tony Cardenas, D-Calif., and Scott Garrett, R-N.J., in September introduced H.R. 5502, a companion bill to Kentucky Republican Senator Rand Paul's FAIR (Fifth Amendment Integrity Restoration) Act.
The Act would increase the standard for forfeiture from “a preponderance of the evidence” to “clear and convincing evidence” and rewrite the law dealing with civil forfeiture to take away the federal government's ability to transfer seized property back to local police departments. This would go a long way toward eliminating current perverse incentives.
If civil forfeiture is a necessary law enforcement tool, then its proponents should favor reform. Ending legalized plunder should be a bipartisan priority for the incoming 114th Congress.
This piece originally appeared in Washington Examiner
This piece originally appeared in Washington Examiner