In 2014, American police seized more assets from American citizens through civil asset forfeiture policies than burglars stole.
Federal, state and local officers have broad scope to seize assets from Americans without trial or criminal charge, let alone proof that they committed any offense. While property owners can challenge a seizure in court, the burden of proof is on them and costly attorney fees and arcane procedures often discourage them. The value of the property is often less than cost to hire an attorney.
Only a handful of states require that, in some or all cases, police clearly and convincingly prove seized assets are linked to a violation. More than half of states only ask police to show that at the time of the seizure they had probable cause to believe that the property was tied to a violation. Probable cause is usually defined as more than a mere suspicion but less than a prima facie case. This is a much lower burden of proof than “clear and convincing evidence” or “beyond a reasonable doubt”. Anything less than having to show beyond a reasonable doubt that the property was connected to a crime lets the state take property from citizens without a conviction or even charge.
This is a slap in the face to due process. The Fourth Amendment demands:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Before the American revolution, the English Crown would permit customs officials to seize homes and vessels for alleged contraband or for on- or off-loading cargo without proof of having paid import and export duties and taxes. Legal scholars have suggested this was “among the key grievances that triggered the American Revolution.”
To combat this practice, the founders guaranteed in the Fifth Amendment that “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
According to the New Yorker, asset forfeiture became a serious problem in the U.S. in the 1970s. The forfeiture was aimed at fighting crime bosses and drug lords and these federal statutes permitted the seizure of assets tied to illegal drug production. When Congress passed the Comprehensive Crime Control Act in 1984, which permitted police departments to keep the proceeds from the forfeitures, the practice expanded, especially in poor areas.
If there is no due process, there is no rule of law. Proper order is impossible when institutions do not maintain fair and constitutional laws. Rather, the government fortifies institutional violations of law and decreases trust in police and government overall.
Apart from its intrinsic problems, civil asset forfeiture policies are also rife with corruption.
In more than 40 states, police departments keep at least 50 percent of the seized assets for themselves. In about half of those states, police are able to keep 100 percent of the seized assets. This provides police with an incentive to seize assets.
As the Washington Post reported, police use hundreds of millions of dollars they received from asset forfeiture to fund “guns, armored cars and electronic surveillance gear,” as well as “luxury vehicles, travel and a clown named Sparkles.”
Chicago alone seized $72 million over seven years, and used the money to purchase items, which include cell-phone tracking devices. As Reason reported, some seized assets in Illinois include “Xbox controllers, televisions, nunchucks, 12 cans of peas, a pair of rhinestone cufflinks, and a bayonet” supposedly linked to crimes. Police hit low-income areas the hardest.
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” Supreme Court Justice Clarence Thomas, said on the issue. “Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
Advocates of civil asset forfeiture policies argue the procedure deters crime and helps fund the police. In truth, Constitutional rights are surrendered for a false sense of security. This legal theft traduces due process and law and order. Crime deterrents only work if criminals are being targeted. If everyone is harmed by these policies, it doesn’t deter crime; it just diminishes Americans’ trust in law enforcement.
Tyler Arnold is a communications associate at Cause of Action Institute
