The House of Representatives looks poised to limit a procedure that has pilfered billions from countless innocents under the guise of a criminal proceeding.
The House of Representatives looks poised to limit a procedure that has pilfered billions from countless innocents under the guise of a criminal proceeding.
I n June, the House Judiciary Committee advanced the Fifth Amendment Integrity Restoration Act (FAIR) by unanimous vote. This bipartisan effort is a step in the right direction toward abolishing an inherently un-American practice.
The legislation, sponsored by Representatives Tim Walberg (R., Mich.), Jamie B. Raskin (D., Md.), and others, would impose meaningful limits on federal civil asset forfeiture, the practice that permits law-enforcement agencies to seize innocent Americans’ personal property — from cars to cash to homes and businesses — on the mere suspicion that the items were involved in criminal activity. Once the property is seized, owners are tasked with navigating a byzantine process, making it unlikely they ever will regain the stolen property.
Passage of the FAIR Act would require that the government present “clear and convincing evidence” that the property was used in the commission of a crime and establish the right to state-appointed counsel for individuals who cannot afford a lawyer to help reclaim their property. The bill would remove forfeited funds from law-enforcement budgets and end the practice of “equitable sharing”— in which federal and state law-enforcement agencies partner to seize assets under federal law and share the profits. It would rid agencies of perverse incentives to pad their budgets with the cash of everyday citizens. Bipartisan effort on the issue is admirable, but the FAIR Act is nothing more than an attempt to rein in an unconstitutional practice that really should be abolished altogether.
Unlike criminal forfeiture, which requires a conviction, civil asset forfeiture can occur whether or not the property owner is ever charged with a crime. Law enforcement can force the forfeiture of property even when the owner is an innocent third party whose property happened to fall into the wrong hands. The onus is then placed on the owners to prove their innocence and initiate a lawsuit to recover their possessions, all without the right to state-provided legal representation and the due-process protections that are constitutionally guaranteed for the criminally accused. Often, individuals decide the seized property is not worth the cost of hiring a lawyer to help navigate the arduous process, and they resign.
Many forfeiture victims are people like Malinda Harris, of Berkshire County, Mass., whose car was confiscated after she let her son borrow it in 2015. She heard nothing from the state government for five years until she finally was served a civil-forfeiture complaint alleging that her son was suspected of dealing drugs and that “occupancy papers,” two parking tickets, and a “Jiffy Lube receipt” found in the car provided probable cause for the forfeiture. The complaint does not allege that the car itself was used for drug-dealing or that Harris knew of her son’s behavior. When the Goldwater Institute stepped in on Harris’s behalf, it discovered that the Berkshire County Law Enforcement Task Force and the Berkshire County District Attorney’s Office planned to split the proceeds from the car. Shortly after the Goldwater Institute got involved, the county returned Harris’s car to her.
Since the War on Drugs in the early 1980s, civil forfeiture has become quite the cash cow for state and federal law-enforcement agencies. In 2014, federal agents managed to steal more property ($5 billion) than burglars did ($3.5 billion).
Where does the money go? In many states, proceeds from forfeited assets are given back to the police departments, creating a perverse incentive to seize more property. And unlike traditional police budgets, funds obtained through forfeiture are not subject to public scrutiny via the democratic process. Just ask Police Chief Jeff Buck of Ohio, whose department hired a face-painting clown for a community event and who reassured the Washington Post that “the [forfeited] money I spent on Sparkles the Clown is a very, very minute portion of the forfeited money that I spend in fighting the war on drugs.”
Even for states that do not allow forfeiture proceeds to flow into police budgets, the federal equitable-sharing program allows states to quietly circumvent their own laws by partnering with the federal government to seize property under federal law, instead of state or local law, and receive up to 80 percent of the profits in return. Approximately one-fifth of the $46 billion the federal government seized through forfeiture between 2000 and 2020 was returned to state and local law-enforcement agencies through equitable-sharing programs.
Proponents of civil asset forfeiture argue that allowing the government to confiscate individuals’ personal property deprives criminals of their ill-gotten gains and disincentivizes criminal activity, all while increasing law-enforcement budgets.
This argument fails to consider one key part of the equation: Many of the property owners who fall prey to civil forfeiture have not committed a crime. It also ignores the reality that the average criminal forfeiture victim is not an El Chapo-esque kingpin or Al Capone money launderer, but an everyday citizen. At the federal level, the average cash forfeiture is less than $12,900, and at the state level, it’s less than $1,300. Forfeiture at this level cannot cripple a criminal organization, but it can cripple a household.
A core tenet of our justice system is innocent until proven guilty, and there is no reason why federal law enforcement should be seizing personal property from everyday citizens on tenuous suspicion. Federal reform will not go far enough to protect Americans from unjust property seizure until civil asset forfeiture is abolished entirely.