Civil asset forfeiture allows the government to seize cash, cars, real estate, or other property suspected of being connected to criminal activity, even if the owner is never arrested for a crime. In a staggering 80% of civil asset forfeitures, criminal charges are never filed against property owners.
Civil asset forfeiture was rarely used prior to the war on drugs. However, the Comprehensive Drug Abuse Prevention and Control Act of 1970 authorized the government to seize drugs and drug equipment. As the war on drugs intensified, Congress expanded the range of property subject to forfeiture. Cash, bank accounts, jewelry, cars, boats, airplanes, businesses, houses and land all became fair game.
A basic principle of criminal justice is the presumption of innocence until proven guilty. Civil forfeiture perverts this basic principal by presuming guilt and placing the responsibility on owners to prove the innocence of their own property, which is nearly impossible to do.
Civil forfeiture also imposes a degree of punishment associated with a criminal proceeding, but without the constitutional protections guaranteed by a criminal trial. In civil proceedings, the government usually only needs to prove the property’s connection to alleged criminal activity by a “preponderance of evidence” standard, a much lower standard than the “beyond a reasonable doubt” standard used in criminal cases. Moreover, there is no right to an attorney and the civil court system is complicated to navigate.
According to one ACLU report on civil asset forfeiture in Philadelphia, African-American people account for 71% of owners who have cash forfeited without being convicted of a crime each year. Another ACLU report from Northern California found that 85% of the proceeds of federal asset forfeiture in California go to agencies that police communities that are majority people of color.
People in low-income communities are particularly vulnerable because they are more likely to carry cash. Few property owners, especially low-income individuals, can meet the burdens of civil forfeiture proceedings and often do not challenge seizures of their property.
Law enforcement agencies have increasingly turned to asset seizures to compensate for budgetary shortfalls. This “policing for profit” is no secret. For example, in 1990 the U.S. Attorney General openly stated: “We must significantly increase forfeiture production to reach our budget target. Every effort must be made to increase forfeiture income.”
The result is that law enforcement over-enforces crimes that carry the possibility of forfeiture (most predominantly minor drug offenses) to the neglect of other, more important law enforcement objectives that actually impact public safety.
Moreover, there is a lack of transparency and accountability in how law enforcement agencies collect and use the funds generated through civil asset forfeiture. Many states have few or no requirements in how they track and report on seized property.
The Drug Policy Alliance has long played a leading role in forfeiture reform – calling for abolishing civil forfeiture entirely and supporting efforts to reform the practice, including:
DPA has made significant progress reforming civil asset forfeiture policies in target states. In 2015, we help pass a groundbreaking bill in New Mexico that enacted many reforms, giving the state some of the strongest protections against wrongful seizures in the country. Although law enforcement in New Mexico continue to push for repealing the law, DPA continues to protect the reforms.
In 2017, California passed sweeping civil forfeiture reform that removed the financial incentives for law enforcement to seize property and pursue forfeitures with federal agencies in cases where no one is arrested, charged or convicted of a crime. California’s reform effort added to a growing list of states ― including Florida, Maryland, Michigan, Minnesota, Montana, Nebraska, New Mexico, Tennessee, Virginia, Wyoming ― who have taken a stance against policing for profit.
However, reforms have stalled at the federal level. In 2015, Senator Rand Paul (R-KY) in the Senate and Rep. Tim Walberg (R-MI) in the House introduced the Fifth Amendment Integrity Restoration (FAIR) Act. The bill would eliminate the Department of Justice’s Equitable Sharing Program and scale back many of the worst harms of civil forfeiture. Unfortunately, this bipartisan effort has been put on the back burner during the Trump Administration with Attorney General Session's releasing a directive expanding the Federal government's use of asset forfeiture.