Civil asset forfeiture is a controversial law enforcement practice that allows police to seize property, including cash and vehicles, that they suspect is involved in criminal activity. The property can be seized without even filing criminal charges, leading to concerns about conflicts of interest when law enforcement agencies get to keep the proceeds. This article will examine the problems with civil forfeiture and propose some reforms to address them.
What is Civil Asset Forfeiture?
The practice of civil asset forfeiture enables law enforcement officers to take possession of property that is believed to be associated with illegal acts, without requiring a criminal conviction. Unlike criminal forfeiture, there is no need to obtain a criminal conviction or even file charges against the owner. Police can seize property if they have probable cause to believe it is involved in illegal activity. The standard of proof is very low compared to criminal law – essentially just a reasonable belief of illicit use. The owner must then go to court to try to get their property back by proving its “innocence.” This flips the traditional innocent until proven guilty principle on its head.
Police Motivations and Incentives
A major problem is that in many states and at the federal level, law enforcement agencies get to keep a significant portion of the assets they seize through civil forfeiture. This means police departments have a direct financial incentive to seize as much property as possible. The more they forfeit, the more revenue they generate. Police budgets across the country have become dependent on forfeiture proceeds.
This clear conflict of interest causes many to question whether seizures are motivated more by profit than by fighting crime. Numerous examples exist of people having cash, cars, or other assets seized without being charged with any crime.
In one egregious example, a marine veteran had his $87,000 cash savings seized during a bogus traffic stop by the Nevada Highway Patrol. He was never charged or even accused of a crime, but the police were able to retain his money while he ended up becoming homeless. Only media interest led to the money being returned to him. Stories like this demonstrate how the profit incentive can supersede rights.
Pretextual Stops and Disproportionate Impact
The profit incentive leads police to engage in pretextual stops to search for assets to seize. For example, they may pull someone over for a minor traffic violation and then use it as a justification to search the vehicle for significant amounts of cash.
These types of stops disproportionately target racial minorities and low-income individuals. People of color and disadvantaged communities tend to have fewer resources to fight back in court.
Civil liberties groups argue the massive expansion of civil forfeiture since the 1980s has led to unconstitutional abuses, unlawful searches and seizures, and undermined due process rights.
Reforms to Address Conflicts of Interest
Given the problems and abuses, many argue the incentives around civil forfeiture need to change. Some ways to address the conflicts of interest include:
- Restricting how much police departments can retain – Some states now cap the percentage of forfeiture proceeds law enforcement can keep, with the rest going to a general fund. This reduces the temptation to over-seize.
- Requiring criminal conviction – To align with innocent until proven guilty, some advocate that assets should only be forfeited after a criminal conviction, not before.
- Raising the standard of proof – The very low standard of proof for civil forfeiture is problematic. Requiring “beyond a reasonable doubt” or at least “clear and convincing evidence” would help prevent abuses.
- Limiting pretextual stops – Some jurisdictions have tried curtailing officers’ ability to turn minor traffic violations into searches for assets to seize.
- Enhanced reporting requirements – Better tracking and transparency around what is being seized and how forfeiture proceeds are spent would increase accountability.
- Providing attorneys for owners – Many cannot afford legal representation to get their property back. Providing attorneys for those facing forfeiture would increase oversight and make abuses less likely.
- Redirecting proceeds to education or treatment – Having forfeiture funds go towards education, drug treatment, or other social programs instead of police budgets could help de-incentivize overuse.
The goal should be addressing the clear conflicts of interest while still allowing seizures of assets that are proven to be illicit. With reform, civil asset forfeiture can be a tool for fighting crime while protecting due process rights.
State Reforms and SCOTUS
Given increasing media exposure and advocacy around the abuses, there has been some progress on forfeiture reform at the state level.
Over 25 states now have laws limiting the practice in some way, such as enhanced reporting requirements or restricting how much police can keep. New Mexico, North Carolina, and Nebraska have even abolished civil forfeiture entirely.
However, many states still permit very questionable practices. There is no national standard, allowing concerning variances across states.
The U.S. Supreme Court has also weighed in on occasion. In 2019, SCOTUS ruled to limit the abilities of local and state governments to seize property due to, in many cases, the asset forfeitures not reflecting the crime. This came about due to a man pleading guilty to selling $400 of heroin and having his $42,000 car seized. The Supreme Court ruling was an important recognition of the punitive nature of seizures.
However, many argue SCOTUS needs to continue revisiting forfeiture laws that undermine due process and lend themselves to abuse of authority. The current precedent dates from a time when asset forfeiture was less extensive. Stronger protections may be needed today.
Civil asset forfeiture remains highly controversial given the weak standards of proof required and the financial incentives police have to seize property. There are too many instances of abuse when departments get to benefit from what they take. Implementing reforms can help curb the worst abuses and realign incentives more with justice.
If you believe the police have wrongly seized your property, contact us today.
You can visit our office at 422 Jacksonville Dr. Suite B, Jacksonville Beach, FL 32250.
Or call us for a free consultation on (904) 633-9999.
