Ending state-sanctioned theft to preserve police legitimacy

Civil asset forfeiture is not an asset to the American people—it is legalized theft without constitutionally-required due process of law. Thankfully, the practice may finally be curbed. 

Recently, the U.S. Court of Appeals for the 6th Circuit found Wayne County, Michigan’s civil asset forfeiture program in violation of the due process clause of the 14th Amendment. Civil asset forfeiture is the process by which governments seize citizens’ property without respect to the long-standing adage of “innocent until proven guilty.” The 6th Circuit decision is a hopeful sign of things to come. Whether through further court decisions or congressional and state legislation, it’s time to end state-sanctioned theft by putting appropriate limitations on civil asset forfeiture. 

Civil asset forfeiture was established with noble intentions—to effectively fight crime. But like many well-intentioned policies, it has been misused, to the detriment of Americans’ rights. 

For the purpose of solving crimes and preventing more, it’s often necessary for law enforcement to seize crime-related property. According to the Drug Enforcement Administration, asset forfeiture has a variety of benefits: deterring crime by taking away profits, helping dismantle organized crime, and punishing criminals. 

However, none of these benefits come from seizing innocent Americans’ property. The existing lack of standards around the practice of asset forfeiture preemptively punishes those who may indeed be innocent, leaving them an arduous and often impossible fight to prove their innocence to get their property back. Seized property has included entire businesses, bank accounts, life savings, automobiles, and homes or other real estate possessions. 

At present, many law enforcement agencies may seize property with only probable cause, the same standard needed to obtain a search warrant. Too often, property is taken without a criminal charge ever brought against the owner. Worse still, it is not returned even if the property is never found to be criminally related. For citizens trying to get their property back, they may now be living without their money or business, making it still more difficult to mount a successful motion against the government.

Placing the burden of proof on individuals to prove their innocence to the government, not vice versa, runs afoul of our country’s constitutional protections. For this reason, over the past ten years, 37 states made needed reforms to their civil forfeiture laws, and four states—Maine, Nebraska, North Carolina and New Mexico— abolished the practice entirely. Even traditionally conservative states like Texashave sought changes to their forfeiture laws by increasing the seizure threshold to a stricter standard. 

Unfortunately, a complicating factor in reform is that many law enforcement departments have come to depend on revenue from civil asset forfeiture to fully fund their agencies, as agencies are able to keep or sell seized property. The profits from seizures are staggering. In 20 years, the government has made $68.8 billion dollars in forfeiture revenue. 

But no matter how strapped law enforcement agencies are for cash, ruining innocent Americans’ lives is too large a price to pay. Agencies need full funding to police responsibly and effectively, but the battle for funding needs to be fought on legal grounds.

While police may be worried about losing money from forfeiture reforms, law enforcement actually stands to gain from such changes. Ensuring policing practices follow constitutionally mandated protections will increase positive perception of law enforcement in communities, improving police legitimacy and leading to better public safety outcomes.

Thankfully, although the federal government has been slow to act, there is substantial potential for reform at the federal level, either through Congress or through a mandate from the Supreme Court.

A case scheduled to be heard on Oct. 30 in the Supreme Court, similar to the Michigan case, has potential to shape laws nationally.

Congressional champions of asset forfeiture reform have asked their colleagues to follow state legislatures’ and courts’ lead. Michigan Republican Rep. Tim Walberg and Maryland Democrat Rep. Jamie Raskin have reintroduced their Fifth Amendment Integrity Restoration (FAIR) Act. This bill would increase the burden of proof to ensure seized property is tied to criminal activity, as well as close a loophole practice called “equitable sharing,” which allows states that have curtailed or banned civil asset forfeiture to skirt limitations by running their forfeitures through the federal program instead. 

Congress should prioritize action on the FAIR Act. They will have the support of a near supermajority of Americans who oppose allowing law enforcement to use forfeited property or its proceeds for their own use. Understandably, both Republicans and Democrats have criticized our current civil asset forfeiture laws and how they conflict with our right to due process. 

We must seek new ways to ensure departments are fully funded for and equipped to protect and serve effectively, without relying on civil asset forfeiture, which clearly flies in the face of Americans’ right to be considered innocent until proven guilty.

Sarah Anderson is the associate director of Criminal Justice & Civil Liberties at the R Street Institute. Jillian Snider is the policy director for R Street’s Criminal Justice and Civil Liberties team and a retired New York City police officer.