Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets--all without so much as charging you with a crime. Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with a crime let alone be convicted to lose homes, cars, cash or other property.
Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent. Civil forfeiture--where the police may seize property upon the mere suspicion that it may have some connection to criminal activity--threatens the property rights of all Americans. The overriding goal of police and prosecutors should be the fair and impartial administration of justice. Civil forfeiture laws at the federal level and in 42 states, however, dangerously shift law enforcement priorities instead toward policing for profit.
American forfeiture law arose from the British Navigation Acts of the mid-17th century. Passed during England's vast expansion as a maritime power, the Acts required that any ships importing or exporting goods from British ports fly under the British flag. If the Acts were violated, the ships or the cargo could be seized and forfeited to the crown regardless of the guilt or innocence of the owner. The British laws focused on seizing the assets because they could punish violations of the law even when they could not capture the violators. Using the British statutes as a model, the first U.S. Congress passed forfeiture statutes to aid in the collection of customs duties, which provided up to 90 percent of the finances for the federal government during that time.
The U.S. Supreme Court upheld early forfeiture statutes. Most important to understanding these early cases is the underlying rationale for permitting civil forfeiture even against innocent property owners. The Court reasoned that civil forfeiture was closely tied to the practical necessities of enforcing admiralty, piracy and customs laws. Such forfeiture permitted courts to obtain jurisdiction over property when it was virtually impossible to obtain jurisdiction over the persons guilty of violating maritime law. Justice Joseph Story wrote that the "vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attachés, without any reference whatsoever to the character or conduct of the owner." Justice Story justified these forfeitures "from the necessity of the case, as the only adequate means of suppressing the offense or wrong, or insuring an indemnity to the injured party."
Although the U.S. Supreme Court expanded forfeiture law during the exigencies of the Civil War, throughout most of the 20th century, civil forfeiture remained a relative backwater in American law, with one exception--the government used it extensively during Prohibition against automobiles and other vehicles transporting illegal liquor.
Modern civil forfeiture expanded greatly during the early 1980s as governments at all levels stepped up the war on drugs. No longer tied to the practical necessities of enforcing maritime law, the forfeiture power has become one of the most powerful weapons in the government's crime-fighting arsenal.
For instance, in 1986, the second year after the creation of the U.S. Department of Justice's Asset Forfeiture Fund, the fund took in $93.7 million in proceeds from forfeited assets. In 2008, the fund skyrocketed to more than $1 billion in forfeited assets for the first time in the fund's history. Changes in the law have had a profound effect on law enforcement priorities. Indeed, in 2008, it was reported that the Bureau of Alcohol, Tobacco, Firearms and Explosives had ordered Leatherman multi-tools inscribed with the letters ATF--"Asset Forfeiture" and "Always Think Forfeiture." Researchers point to evidence indicating that the use of state forfeiture is, likewise, extensive and growing.
Three factors work in combination to set up modern forfeiture abuse.
Most states and the federal government allow law enforcement agencies to keep 90 percent or more of the profits from assets they forfeit. This money may be used for better equipment, nicer offices, newer vehicles, trips to law enforcement conventions and--in states like Texas--even police salaries. Thus, law enforcement agencies benefit in a very direct way from every dollar in assets and currency they manage to seize and forfeit. This profit motive forms the rotten core of forfeiture abuse.
Standard of Proof
The second way states make civil forfeiture harder on property owners is to establish a lower "standard of proof" under which the government can take the property. As most people know, the standard of proof in a criminal proceeding is "beyond a reasonable doubt." That is, the state must demonstrate to the jury that evidence shows that the accused individual committed the crime beyond a reasonable doubt. This high standard exists to protect the rights of innocent individuals who might be accused of a crime. But innocent property owners enjoy no such protections. In only two states (Nebraska and Wisconsin) does the civil forfeiture standard match the criminal standard--"beyond a reasonable doubt." And North Carolina has nearly abolished forfeiture entirely. Most states, however, have adopted a mere "preponderance of the evidence" standard, a standard that is usually reserved for such things as contract disputes. In effect, this means that criminals have more rights than innocent owners when it comes to forfeiture.
Innocent Owner Burden
Finally, many states shift the burden of proof from the state to the owner to prove that he or she is innocent of the crime in forfeiture cases. In other words, with civil forfeiture, property owners are effectively guilty until proven innocent. The increased burden (including substantial legal costs) with proving one's innocence can result in owners abandoning rightful claims to seized property. And if owners do not fight civil forfeiture and the government wins by default, law enforcement agencies are more likely to engage in it. The U.S. Supreme Court upheld the forfeiture of an innocent owner's property in 1993 under then-current federal law and since that time forfeitures have skyrocketed at both the federal and state level.
The net effect of these three factors is to increase the use of forfeiture by law enforcement agencies by incentivizing forfeiture through making it profitable for the agencies that engage in it, by making it easier to keep seized property (by lowering the standard of proof) and by making it more expensive and difficult for owners to challenge the action (by shifting the burden of proof to the innocent owner).
When public officials and their agencies have a direct financial stake in the outcome of their actions, courts must subject such actions to even closer scrutiny than is done now. Impartiality is one of the primary principles guaranteed by the Due Process Clause of the U.S. Constitution. The clause guarantees the right to an impartial tribunal in criminal and civil cases. In such cases as Tumey v. Ohio, the Supreme Court held that an impermissible bias exists when the fact finder has a financial interest in the outcome. The Supreme Court has also held that the Due Process Clause could be violated even if an official does not receive a direct benefit from a particular scheme, so long as his department or agency could.
Moreover, the relevant inquiry is whether the scheme creates a possible temptation--rather than a proven biased result. But until the High Court weighs in on the due process issues at the heart of civil asset forfeiture, we will continue to see private property increasingly at risk across the nation.
Chip Mellor is president and general counsel of the Institute for Justice. For more information, visit www.ij.org.