13 November 2015

Civil forfeiture is the equivalent of guilty until proven innocent


Americans understand the importance of the principle of innocent until proven guilty. However, a problematic, growing government program turns this long-standing ideal on its head. Civil forfeiture allows law enforcement to take personal property without even accusing individuals of a crime, much less proving them guilty beyond a reasonable doubt.

On Tuesday the Institute for Justice released Policing for Profit, a report that shows the growth in this abuse of power. Civil forfeiture does not just need to be curtailed—it needs to be ended.

Civil forfeiture differs from criminal forfeiture. No one should profit from crime, and criminal forfeiture gives law enforcement the ability to confiscate criminal proceeds. However, for most states and the federal government, no evidence that a person even committed a crime is necessary for civil forfeiture. Civil forfeiture is also much more common than criminal forfeiture—only 13 percent of Department of Justice forfeitures from 1997 to 2013 were criminal, whereas 87 percent were civil.

Instead of charging individuals with crimes, and having to prove guilt beyond a reasonable doubt, federal law enforcement officers and those in 33 states simply have to believe, based on a preponderance of evidence, that a piece of property was connected to some sort of criminal activity. The property, instead of the owner, is then charged with the crime—leading to ridiculous case names such as United States v. One Solid Gold Object in Form of a Rooster. Next, the financial and legal burden of proving that property “innocent” is placed on the owners who, unlike criminal defendants, receive no help from the government.

Nearly nine in ten DOJ civil forfeiture cases never reach a judge because these hurdles are often too high and complex for property owners to overcome. Between 2011 and 2013, half the civil forfeiture cases in Philadelphia (one of the worst jurisdictions when it comes to forfeiture abuse) were for amounts under $192. In Minnesota, the median value of the 34,000 pieces of property seized through civil forfeiture during 2012 was just $451.

This appalling lack of due process sounds unbelievable, but happens regularly. Civil forfeiture continues to grow and leave victimized ordinary Americans in its wake. Take, for example, 24-year-old Charles Clarke. He was about to fly home to Florida from Cincinnati, Ohio when law enforcement officers searched his bag. They found his life savings—$11,000—and promptly seized it, even though they had no evidence that he committed any crime. The officers then searched his person, carry-on bag, and checked bag and found no evidence of criminal activity. Regardless of his innocence, officers did not return Clarke’s funds.  Clarke had a reason for carrying cash. His bank had no physical branches near his home, and he and his mother were moving to a new apartment. To keep his cash safe and avoid losing it in the move, Clarke decided to keep it on his person, but none of that mattered to the law enforcement officers. Under the twisted logic of civil forfeiture, carrying cash is enough justification to lose it.

Some states and cities, most recently New Mexico and the District of Columbia, have taken steps to curtail forfeiture abuse. Unfortunately, if the federal government does not address this practice, not much will change. Federal agents are some of the worst offenders when it comes to forfeiture abuse, and local law enforcement can seek their involvement to get around state restrictions.

One of Eric Holder’s last acts as Attorney General of the Justice Department was to reform some aspects of the so-called “equitable sharing” forfeiture program. While his reforms were a step in the right direction, they only scrape the surface when it comes to forfeiture abuse.

Equitable sharing allows state and local law enforcement agents to seize property under federal law instead of state law. The local agencies then receive up to 80 percent of the proceeds, with the remaining amounts going to the Justice Department’s fund. This incentive is why there is a relationship between restrictive state forfeiture laws and increased participation in equitable sharing. The Justice Department paid $4.7 billion in equitable sharing proceeds to state and local law enforcement agencies from 2000 to 2013. Over that time, the annual totals more than tripled. “Adoptions,” the focus of Holder’s reform, only accounted for 18 percent of the total amount transferred. The rest originated from joint task forces and investigations, which are unaffected by Holder’s reforms.

Civil forfeiture has ballooned into a funding tool for law enforcement agencies because there are perverse incentives built into most forfeiture laws. Rather than going to a general fund, civil forfeiture proceeds go to the seizing agencies’ budgets. The Department of Justice’s Forfeiture Fund had $4.5 billion in deposits last year—an over 4,500 percent increase from 1986. In 2012 (the latest available data), 26 states and DC took in $254 million though forfeiture. The total for all states is much higher, but many jurisdictions do not keep accurate records (or records at all) on their forfeiture programs. With the additional $643 million in equitable sharing in 2013, and the funds seized each year by the U.S. Treasury, it is safe to estimate that the total annual amount taken though civil forfeiture will top $5 billion this year.

Carrying cash, even large amounts of cash, is not a crime. If law enforcement agencies require greater levels of funding, they need to find another way to secure it that does not involve stealing from innocent Americans. The Institute for Justice report shows that these abusive agencies cannot be trusted to police their own actions. It is time for Washington to take away the option of civil forfeiture from law enforcement agencies and restore Americans’ right to be presumed innocent until proven guilty.

Jared Meyer is a Fellow at Economics 21, Manhattan Institute