Guest post by Dan Alban, attorney at the Institute for Justice.
The abusive practice of civil forfeiture has repeatedly been condemned all across the political spectrum, with 175 editorials from 85 separate news outlets calling for civil forfeiture to be reformed or eliminated since July 2014. Despite this widespread consensus on the need for forfeiture reform, a specious new article on the FBI website defends civil and criminal forfeiture, claiming that forfeiture is “a law enforcement tool [that] allows us to accomplish a number of goals—from disrupting and dismantling criminal and terrorist organizations and punishing criminals to compensating victims and protecting communities.”
Yet, as the article acknowledges, civil forfeiture allows the police to take your property without even charging you with a crime. If the police merely suspect that your property was involved in a crime—even if you weren’t the one who committed the crime—they can seize it and try to keep it using civil forfeiture.
The FBI’s attempt to justify civil forfeiture as a “law enforcement tool” to punish criminals fails to mention that civil forfeiture punishes many innocent Americans, forcing them to prove their own innocence in order to get back their cars, homes, money and other property. Rather than compensating victims and protecting communities, civil forfeiture more often creates new victims and undermines community security and trust in law enforcement.
The FBI’s defense of civil forfeiture is badly misleading for at least three reasons: (1) it wrongly implies that those whose property is taken through civil forfeiture are criminals, completely ignoring the poor procedural protections for property owners in civil forfeiture proceedings; (2) it fails to acknowledge that law enforcement agency priorities are distorted by the ability to keep and spend up to100 percent of the proceeds from civil forfeiture; and (3) it focuses on a narrow category of civil forfeitures where civil forfeiture is used as a backup to criminal forfeiture, instead of the many civil forfeiture cases where there are no criminal convictions or even criminal charges.
First, the FBI’s article simply assumes that those who lose their property to civil forfeiture are criminals who need to be punished or disrupted or dismantled. But civil forfeiture, as the FBI admits, is “not dependent on a criminal prosecution.” In other words, civil forfeiture allows police to take property without so much as charging the owner with a crime, much less securing a criminal conviction.
In fact, there are very few protections for property owners in federal civil forfeiture proceedings. Only 12 percent of civil forfeitures from 1997 to 2013 involved a judge; the remaining 88 percent were administrative proceedings with the forfeiting agency acting as investigator, prosecutor and judge. In administrative proceedings, the forfeiture is presumed valid, and owners must make the case for return of their property.
Even in judicial proceedings, property owners do not have a right to counsel, the government must meet only a low standard of proof (preponderance of the evidence—or more likely than not), and there is not a prompt opportunity to challenge the seizure of cash. Once the government meets its standard of proof, the burden then shifts to property owners to affirmatively prove that they are innocent and did not know of the illegal activity to which their property has been linked. In other words, civil forfeiture turns the presumption of innocence on its head.
Moreover, despite the FBI’s claim that civil judicial forfeiture “generally involve[s] property worth more than $500,000,” IJ’s analysis of data obtained through the Freedom of Information Act reveals that only 1,435 (2.5 percent) of the 56,787 civil judicial forfeitures carried out by the DOJ since 2000 were worth $500,000 or more. In fact, the median value of assets forfeited by the Justice Department under civil judicial forfeiture was just $5,814. With such relatively low amounts at stake, it often does not make financial sense for property owners to spend thousands of dollars hiring an attorney to help secure the return of their property.
Second, law enforcement agencies have financial incentives to take property through civil forfeiture because they get to keep and spend up to 100 percent of the proceeds. This distorts law enforcement priorities, encouraging agencies to focus more on seizing property than on actually preventing crime or catching criminals. For example, a drug interdiction task force in Tennessee made 10 times as many stops on the westbound side of I-40, where it expected to seize money (that it could later spend), than on the eastbound side, where it was more likely to find drugs (which it would have to destroy). As a result, more drugs passed through the I-40 corridor because police responded to the financial incentive created by civil forfeiture. These financial incentives also interfere with the impartial administration of justice. How can an agency remain neutral in deciding whether to forfeit your car or home when it gets funding from the proceeds of forfeiture sales?
As a result of this conflict of interest, the federal government’s use of forfeiture has exploded in recent years, with over $36 billion forfeited by the DOJ since 2000. The FBI claims that the DOJ “has returned more than $4 billion in forfeited funds to crime victims” since 2000, but this goal could be accomplished exclusively through criminal forfeiture. Moreover, this makes up only 11 percent of the total deposited into the federal forfeiture funds during that time period. The lion’s share of forfeiture funds is available for law enforcement agencies to spend. For example, from 2000 to 2013, $4.7 billion was paid to local law enforcement agencies through the federal equitable sharing program—which allows local police to partner with federal authorities on civil forfeitures in exchange for up to 80 percent of the proceeds.
Third, the FBI focuses on defending a narrow slice of civil forfeiture: those cases where it is used as a backup in parallel proceedings with criminal forfeiture, such as when the property owner is a fugitive or when a criminal defendant dies before the criminal forfeiture order issues. (The FBI also claims that civil forfeiture allows it to move more quickly than criminal forfeiture, but it leads with an example in which civil forfeiture proceedings were resolved two years after seven federal criminal convictions were secured.) If civil forfeiture were limited only to the unusual situations highlighted by the FBI, there might be little cause for concern. But many civil forfeiture cases do not involve criminal convictions or even criminal charges. The absence of adequate process married to the perverse financial incentive has led to widespread abuse with a disproportionate impact on minorities and those with lower incomes, who often cannot afford to hire a lawyer to represent them in civil forfeiture proceedings.
Civil forfeiture has treated countless ordinary Americans worse than criminals. For example, since 9/11, civil forfeiture has resulted in nearly 62,000 cash seizures totaling more than $2.5 billion through “highway interdictions” —all without any search warrants or indictments. And there have been many other forfeitures where completely innocent people– including a number of IJ clients, such as Russ Caswell, Carole Hinders, Christos and Markela Sourovelis, Randy Sowers, Khalid (“Ken”) Quran, Terry Dehko and Sandy Thomas, Mark Zaniewski, David and Larry Vocatura, and Jeffrey, Richard and Mitch Hirsch—risked losing their money, homes or businesses despite doing nothing wrong.
While convicted criminals should not benefit from their ill-gotten gains, no one in America should lose their property without being convicted of a crime.
Source of data for this article: Institute for Justice analysis of DOJ civil and criminal forfeiture data obtained by FOI request.