This past week has been a major one for advocates of civil forfeiture reform. Within a few days of each other, two bills were introduced in the U.S. House and Senate which would help limit “policing for profit.” Sen. Rand Paul’s FAIR Act and Rep. Tim Walberg’s Civil Asset Forfeiture Reform Act represent major steps to reform defects in current civil forfeiture law and procedures that have become serious threats to the rights of innocent property owners.
Read IJ’s groundbreaking report on civil forfeiture, Policing for Profit
What is civil forfeiture? It is the process by which law enforcement can seize and keep an individual’s property if it is merely suspected of being involved in criminal activity. Unlike criminal forfeiture, with civil forfeiture, the government can permanently forfeit property without charging, let alone convicting, anyone of a crime.
Current federal civil forfeiture laws turn the principles of due process, presumption of innocence, private property rights, and federalism on their heads.
Under this practice, law enforcement may seize property without charging anyone of a crime. Upon seizure, the burden of proof is then placed on the property owner—not the government—to prove their innocence. Since the victims of civil forfeiture tend to be average citizens, not mob bosses, the costs of battling the government often outweigh the value of the seized property.
Current federal law provides a strong financial incentive to pursue civil forfeitures. Since 1984, proceeds from civil forfeiture have gone directly to the agency responsible for the seizure. The introduction of the profit incentive had a predictable result: civil forfeitures skyrocketed. Agencies now had the means to generate cash outside of the appropriations process.
In addition, a federal program known as “equitable sharing” allows federal officials to pay a bounty to local and state law enforcement for participating in federal forfeitures. This allows the local agencies to circumvent strong state laws in favor of more lucrative federal laws. As our report Policing for Profit shows, the results have been disastrous.
Consider the story of Russ Caswell, owner of Motel Caswell in Tewksbury, Mass. Circumventing state law, the Tewksbury Police teamed up with the Department of Justice to take and sell his property because a tiny fraction—15 out of 200,000 visitors in the previous 14 years—were arrested for drug crimes. There was no pursuit of justice here for Mr. Caswell; only the pursuit of profit. The Institute for Justice took up Mr. Caswell’s case and won, preserving his right to keep his property. The legislation being proposed would help prevent these cases from happening, securing property rights for Americans in the future.
In practice, civil forfeiture is nothing more than a legalized shakedown. When a profit incentive is provided, law enforcement and prosecutors will act in their interest and go out of their way to seize property, as has happened to innocent people time, and time, and time, again.
The bills introduced this week represent a monumental step forward for liberty and justice. Both bills would shift the burden of proof from the property owner to the government, increase the standard of proof from the current “preponderance of the evidence” to “clear and convincing,” and restore federalism principles by ending equitable sharing. The FAIR Act would eliminate the profit incentive by requiring forfeiture proceeds to go to the U.S Treasury’s General Fund instead of the Department of Justice, while Rep. Walberg’s bill would work to restore Congressional oversight over the forfeiture funds through additional activity reporting.
It’s time to end one of the most open and flagrant abuses of government power in America today. The Institute for Justice stands with Sen. Paul and Rep. Walberg as they work to reform this practice. Public support is on our side. We fully support the passage of both bills, and hope the issue captures the attention of lawmakers, and the nation, who may not have been aware of this abuse of power.
— Javier Sosa
Javier Sosa is a Maffucci Fellow at the Institute for Justice