Most people unfamiliar with civil forfeiture find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law. How could it be that the government could take your home, business, cash, car or other property without convicting you of or even charging you with a crime?
Modern civil forfeiture laws were enacted in the 1980s. As stories of abuse spread, the issue received some attention in the 1990s, even prompting Congress to modify federal forfeiture laws in 2000 to provide additional protections for property owners. What happened in the wake of those changes, however, is a familiar Washington, D.C., tale. Believing the forfeiture problem was fixed, many in Congress and the media turned their attention elsewhere.
But civil forfeiture continued apace. The federal reforms did not change the perverse financial incentive—which allows law enforcement to keep the property and cash it seizes—at the heart of modern laws. Nor did the reforms in 2000 do anything to change the massive growth of civil forfeiture at the state level. After 9/11, with the new powers afforded law enforcement, forfeiture activity and the revenue it generated skyrocketed. And when the recession hit in the late 2000s, and governments faced budgetary shortfalls, law enforcement agencies had even more of an incentive to raise revenue through forfeiture.
When we launched our initiative against civil forfeiture in 2010, we thought that most Americans, regardless of their background or ideology, would be appalled by civil forfeiture—if they knew about it.
How could it be that the government could take your home, business, cash, car or other property without convicting you of or even charging you with a crime?
The challenge we faced was that even with agencies at the federal, state and local levels raising billions of dollars, not many people knew that civil forfeiture existed, let alone how it might impact them.
So we got to work using all the components of our public interest program: lawsuits, legislation, strategic research, activism and communications. We made civil forfeiture a top priority in our work to restore constitutional protections for private property rights.
We took on a series of high-profile, high-impact cases challenging civil forfeiture at the federal and state levels. Our litigation saved a Massachusetts motel from forfeiture at the hands of a U.S. Attorney’s Office and won back cash that was wrongfully seized from a Burmese Christian rock band in Oklahoma. We forced the IRS to return cash it had unjustly seized from a grocery store owner in Michigan, a restaurant owner in Iowa and a distribution company on Long Island, among others. All in all, IJ has filed 17 civil forfeiture lawsuits, winning 11 of them. Another five are currently pending, and we have more in the pipeline to be filed this year.
But our fight against civil forfeiture goes well beyond the courtroom. Working closely with a diverse coalition, our legislative team has analyzed, testified for and lobbied for important bipartisan reforms that have curtailed civil forfeiture in over a dozen states, while our model bill was the key inspiration for landmark legislation that abolished civil forfeiture outright in New Mexico and Nebraska. Notably, the national party platforms for both the Democrats and Republicans endorsed reforming civil forfeiture last year. (Not surprisingly, the Libertarian Party also backed reform.)
Crucial to both our litigation and legislative work is IJ’s strategic research team, which has produced cutting-edge reports scrutinizing civil forfeiture. Congressional testimony, major media outlets like The Washington Post and The Wall Street Journal and none other than U.S. Supreme Court Justice Clarence Thomas have all cited IJ’s seminal report Policing for Profit. In a March 2017 concurrence, Justice Thomas criticized civil forfeiture as “egregious” and referenced IJ’s research to show how civil forfeiture has “become widespread and highly profitable” for law enforcement, due to “strong incentives to pursue forfeiture.”
Later in March, Policing for Profit was cited in a bombshell report by the U.S. Department of Justice Office of the Inspector General (OIG). Among its many findings, the OIG reported that, over a 10 year-period, the DEA had taken over $3.2 billion in cash without judicial oversight. The OIG also found that the Justice Department does not ensure that its forfeiture activities advance criminal investigations—or even measure the extent to which they do. The report noted that IJ, along with members of Congress and high-profile newspapers, have all “expressed concerns” about the financial incentive behind civil forfeiture as well as the lack of due process protections for property owners.
Less than a week later, another federal auditor, the Treasury Inspector General for Tax Administration (TIGTA), released a scathing review of forfeitures by the IRS, which “compromised the rights of some individuals and businesses.” In its report, TIGTA cited IJ’s research report Seize First, Question Later, which shined a light on the IRS’s seizures and forfeiture activity. TIGTA also referred to IJ client Ken Quran, who had over $150,000 taken from his convenience store’s bank account but ultimately recovered it all thanks to IJ. As TIGTA noted, Ken’s case was an example of government agents displaying “coercive tactics with property owners during interviews.” The fact that even some at the highest echelons in the federal government have recognized forfeiture abuses and favorably cited IJ’s work speaks to the integrity of our research and the sweep of our impact.
The momentum around civil forfeiture is undeniable and the progress is very encouraging. Much work remains, however. We will not rest until civil forfeiture is either radically reformed or—even better—abolished entirely.
IJ has released 12 reports shining a spotlight on civil forfeiture, many of which have been cited in the media, by government officials and even by Justice Clarence Thomas.
Also in this issue
Subscribe to get Liberty & Law magazine direct to your mailbox!
Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.