Time for Congress to Reform Civil Asset Forfeiture

Arizona’s House of Representatives voted for House Bill 2810 last month by an overwhelming 57–2 margin. The legislation would reform and improve upon the state’s civil asset-forfeiture regime, and it now awaits judgment in the state Senate, where a version of it was already unanimously approved last year.

Whereas Democrats in Congress are determined to push a faulty, polarizing police-reform bill that would render American streets less safe and turn the idea of equal justice under the law on its head, Arizona’s lawmakers have shown that the two parties can come together to address real problems in the criminal-justice system.

To understand the way that civil asset forfeiture works in this country is to be shocked by it. Law-enforcement agencies, if they have probable cause to believe that property — be it cash, a vehicle, or anything else — has any connection to a crime, can seize it. Then they need only charge the property, not its owner, with such a connection in order to keep it. Property owners are not entitled to representation in such cases and are forced to sink money into proving they had no knowledge of their property’s connection to a crime. Oftentimes, those legal costs exceed the worth of the property forfeited.

Putting an end to this practice should be an easily agreed-upon priority when it comes to criminal-justice reform. The civil asset-forfeiture process in Arizona and many other states around the country assumes an owner’s culpability without asking the state to prove it, replacing a pillar of the American legal system — “innocent until proven guilty” — with its opposite. This injustice may be obscured by the fact that owners themselves are not charged with a crime, but their guilt is nevertheless an assumption that must be overcome for them to recoup their property. Moreover, the incentive structure is a pernicious one: Law-enforcement officers are provided with motivation to be overzealous in pursuing civil asset forfeiture, since police departments are allowed to supplement their budgets with the property they seize, while property owners have motivation to cede their property without putting up a fight, given the burden of proof they must meet and the substantial legal costs they might incur by pursuing the matter.

House Bill 2810 takes important steps toward making civil asset forfeiture more fair. Its key reform is one that is of not only practical, but principled importance: It forbids authorities from initiating forfeiture proceedings before securing a criminal conviction against the property’s owner for the crime to which the property is alleged to be connected. Quite rightly, this would put the horse back before the cart. Wrongdoing would need to be proven for a punishment to be doled out.

This is a change that should be made on not only a state-by-state basis, but at the federal level as well. Representatives Tim Walberg (R., Mich.) and Jamie Raskin (D., Md.) in the House and Senator Rand Paul in the Senate have traditionally led the congressional charge on civil asset-forfeiture reform, introducing the Fifth Amendment Integrity Restoration (FAIR) Act every Congress, though they have yet to do so during this term. I’ve written before about what that bill would do right:

It would raise the evidentiary standards that the government needs to meet to the “clear and convincing” level. It would place the burden of proof on the government to show a property owner’s knowledge of criminal activity rather than asking property owners to make the case for their innocence. It would guarantee property owners the right to legal representation. Perhaps most important, it would end equitable sharing, incentivizing police departments to stop spending their time pursuing frivolous forfeiture claims. The act’s changes to the reporting structure are also important. The Justice Department does not currently provide a public breakdown of how much of their annual seizures are criminal, administrative, and civil forfeiture, respectively. The FAIR Act would mandate such a breakdown.

By forcing the government to prove property owners had knowledge of the crime committed the FAIR Act would, appropriately, shift the burden of proof. It would also remove the incentive problems discussed earlier by guaranteeing property owners legal representation and ending what is known as “equitable sharing.” As it stands, many local police departments intentionally involve federal authorities in asset-forfeiture cases and then allow those authorities to make seizures. In so doing, they guarantee that less-stringent federal regulations, rather than state ones, apply to the case in question, and can still reap some of the “profits” for themselves through the Department of Justice’s Equitable Sharing Program. Getting rid of the program, as the FAIR Act aims to, would take away the remaining incentive for local law-enforcement agencies to pursue and profit off of seizures.

Federal legislators should take their cues from the way House Bill 2810 has been approved — on a bipartisan basis, with virtually no opposition. Its success proves that lawmakers can still come together to spurn special interests and pass common-sense legislation. But it and other state-level bills like it can only do so much to solve the problem without federal action. It’s time for Congress to step up to the plate.