It’s no secret there’s something amiss in our criminal justice system. For years now, poll after poll has demonstrated growing support among Americans for criminal justice reform of some sort. But too often our national conversation about criminal justice reform has focused on a small set of issues. We need such reform to tackle not just the symptoms of a broken system, but also the perverse incentive structures that broke the system.
One of those structures is the way state and local law enforcement agencies handle civil asset forfeiture.
Forfeiture is when the government seizes property belonging to private citizens. In cases of criminal asset forfeiture, that property is seized as a part of a punishment for a crime and requires a criminal conviction in a court of law. Civil asset forfeiture, by contrast, doesn’t require a conviction; law enforcement simply needs to show that more likely than not, the asset in question was used to facilitate a crime.
At its core, asset forfeiture helps law enforcement to weaken the profit motive for committing crimes, and the threat of asset forfeiture can deter some criminals from engaging in crime in the first place. Civil asset forfeiture, in particular, can serve a clear purpose for law enforcement when it is strictly defined and delimited. Many crimes, such as online lottery scams or business email compromise scams, involve money mules to facilitate the transfer of funds. Civil asset forfeiture allows law enforcement to seize those funds quickly and efficiently.
But civil asset forfeiture today isn’t used just to stop crime; it’s sometimes used to help fund law enforcement agencies.
Since 2000, more than $68 billion in civil assets have been seized by the government, according to the Institute for Justice. Often, these assets were seized from citizens who weren’t suspected of having committed crimes. In many cases, these assets came from the poor and the vulnerable; across the country, some states have median asset seizures of as low as $369, the Institute found.
Examples of abuse run rampant. A 2014 report by the Washington Post found law enforcement regularly seized millions of dollars in assets from motorists flagged in routine traffic stops. These civil asset forfeitures were conducted without a warrant and without an arrest.
Now, many states have laws on the books that limit the ability of state and local law enforcement to perform civil asset forfeitures. Many of these same laws stipulate that assets seized by police cannot directly fund law enforcement operations and must go to other aspects of the local government, such as the school system.
But there’s one big wrinkle. Through the equitable sharing program, law enforcement officers can circumvent these laws by partnering with federal agencies. Police and prosecutors simply must involve federal agents and suddenly state laws no longer apply. That means more assets can be seized; it also means that those assets can be used to fund law enforcement, since the equitable sharing program allows state and local police departments to keep 80 percent of what they seize.
The results are predictable enough. Another Institute for Justice report discovered that a decrease in funding for police departments at the local level corresponds with a rise in the number of asset seizures. It’s simply too lucrative to seize assets. In North Carolina, nearly $300 million has been seized in the past two decades; all of that money was acquired under the equitable sharing program and none was seized according to state law.
Here’s the thing: The prosecution of justice should never be a way for law enforcement to generate revenue. Our criminal justice system is supposed to serve the people it protects; it can’t do that if it’s perversely incentivized to harass, intimidate and rob them for extra funding. Allowing civil asset forfeiture to be abused will do nothing but erode trust between law enforcement officers and the communities needing their service.
Lawmakers at the state level must act. We need more than just state laws that limit civil asset forfeiture; we need to either abolish civil asset forfeiture entirely, or roll back the permissive, unsupervised authorization to use the equitable sharing program to seize assets.
Reform of the civil asset forfeiture system has both bipartisan support and popular enthusiasm. Republicans and Democrats should include addressing civil asset forfeiture in their efforts to reform the criminal justice system.
Timothy Head is executive director of the Faith & Freedom Coalition, a nonprofit political advocacy organization. Follow him on Twitter @timothyrhead.