Civil asset forfeiture
Asset forfeiture, or in layman's terms, the legal seizure of property by law enforcement, has its roots in medieval English law when property seized in crimes such as murder was taken by the Crown and then given to charity as a means of punishment and community reinvestment. The practice evolved over centuries, becoming an important tool in both the British and American fight against piracy when seizing the ship and loot of a captured pirate provided a necessary deterrent against would-be privateers. Outside of fighting piracy, though, asset forfeiture was not used widely in the United States until the 1980s when it became one of law enforcement’s favorite tools in the War on Drugs.
Modern asset forfeiture began with Congress passing the 1970 Comprehensive Drug Abuse Prevention and Control Act which allowed law enforcement to seize drugs and narcotic equipment and then passing a subsequent bill in 1978 called the Psychotropic Substances Act which permitted the seizure of money that was believed to be involved in the drug trade. Asset forfeiture as we know it today finally came into being with the 1984 Comprehensive Crime Control Act, which allowed the seizure and forfeiture of any property thought to be involved with any crime, from automobiles to buildings to even land. These three laws created civil asset forfeiture, which is distinct from criminal asset forfeiture. The standard for civil asset forfeiture is much lower, as the government only needs to provide a preponderance of evidence that the property was used in a crime, while criminal asset forfeiture only occurs after a conviction. This essentially means that once law enforcement seizes your property, it enters a separate civil judicial system, not unlike traffic court. There is a procedure in front of a judge to determine whether your property can be forfeited, but the standard is quite low, lower than the standard for many crimes, meaning that the government can take your property more easily than they can convict you for a crime. Given that the two criminal and property forfeiture processes are different, leading to situations where people aren’t convicted with a crime but their property is still forfeited because the government was able to clear the low bar in civil court.
In the 1984 Comprehensive Crime bill, Congress created an “equitable sharing” program where local state police departments got to keep up to 80% of the funds from the property they seized in asset forfeiture and gave to the federal government. This incentivized local law enforcement to use asset forfeiture as not just a punishment and deterrent tactic, but also a source of funding for their departments. Use of asset forfeiture was limited in the first years of the federal equitable sharing program, with only $93.7 million in assets forfeited in 1986, but it has since skyrocketed. In 2014, the Department of Treasury and Department of Justice raked in nearly $5 billion in forfeited funds and assets. This practice proved profitable across the country, with individual states taking home as much as $46 million per year.
The situation today is quite extreme, especially when compared against traditional levels of theft. In 2014, the Washington Post reported that law enforcement took more in money through asset forfeiture than all burglaries combined that year. Robbers in the U.S. stole $3.5 billion while police seized nearly $5 billion in assets. These stark statistics have amplified calls for reform, especially when local anecdotes of asset forfeiture abuse go viral and enrage communities such as Indiana police seizing a car for speeding only 5mph over the speed limit or Philadelphia police seizing an entire home after the family’s child was accused of selling drugs on the porch.
While proponents of asset forfeiture will point to its intended use against organized crime and prolific criminals, in practice it is utilized by police in wide ranging crimes, including many low-level violations and against first-time offenders, and half of currency forfeitures are for less than $1,300. There are also claims that funds raised by the practice help bolster victim’s rights groups or help pay restitution, as was the historical intention of the practice. However, in 15 states where asset forfeiture data is available (the majority of states do not publish the statistics about asset forfeiture - transparency is often a common reform that is called for), at least six of the 15 states paid zero dollars from their asset forfeiture funds to help pay victims of crimes, and in the other states, only 9% of funds on average were given back to the community. Additionally, like the rest of the criminal justice system, asset forfeiture has very unequal consequences for Black and brown Americans. In Philadelphia for instance, Black people make up 71% of cash forfeitures unaccompanied by a conviction despite making up only 44% of the population.
In reality, local law enforcement agencies use asset forfeitures to furnish their own budgets. Studies have shown that up to 20% of some police budgets are covered by seized assets through asset forfeiture and there have been individual cases of stark abuse of the program, such as a sheriff in New Mexico who spent over $4,000 of forfeited funds on an awards banquet or the Georgian deputy who spent $70,000 of his department’s seized money on a muscle car which he only used to drive to and from work. Anecdotal cases aside, a 2019 study demonstrated that when police departments have budget shortfalls, they often ramp up their use of asset forfeiture in order to meet their financial needs. The situation is worsened because many police departments use civil asset forfeiture to seize property in situations where the accused party isn’t even convicted of a crime. The return process is opaque and overly bureaucratic, and so getting their property back can often cost more than what was seized.
The twisted use of asset forfeiture from a crime-fighting tactic to a bureaucratic mechanism to fund police departments has amplified calls for reform. A September 2020 poll found that 59% of Americans oppose allowing police departments to use funds gained in asset forfeiture and 70% oppose the “equitable sharing” program. This sentiment doesn’t just cut across party lines either - 60% of Republicans say they would be more likely to support someone who supports asset forfeiture reform. Many states have begun to push back against the process, with three banning civil asset forfeiture entirely (North Carolina, New Mexico, and Nebraska). These three states now route all forfeiture of assets through the criminal system, rather than through the civil system, and it has led to much less abuse.
When New Mexico banned civil asset forfeiture in 2015, many proponents of the practice claimed publicly that crime would skyrocket because of the loss of an effective deterrent. However, studies have shown that crimes did not rise at all despite the fact that New Mexico only seized $350,000 in criminal forfeiture between 2015 and 2017 whereas neighboring Texas gained $155 million in the same time period. Other states have passed reforms increasing the government’s burden of proof in order to keep seized assets, requiring more transparency and reporting about asset forfeiture statistics, and ending the “equitable sharing” program with the federal government.
It is clear that Americans are clamoring for asset forfeiture reform. When the police are seizing more money than robbers, there is certainly something amiss. The good news is that multiple states leading the way in asset forfeiture reforms have seen large reductions in forfeiture with little change to the crime rate, furthering advocate’s case for the necessity for change.
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