Civil asset forfeiture: Resist, reform, repeal

Property rights are among an individual’s most important civil rights. But civil forfeiture laws frequently turn government into an enemy of property rights and justice, and they are increasingly making news.

Civil forfeiture laws give law enforcement agents the power to seize your cash, car, house, or other possessions on the mere suspicion that your property has been involved in criminal activity. The government doesn’t need to charge you with any crime — let alone convict you — in order to keep the property it seizes using civil forfeiture laws.

Turning the presumption of innocence upside down, it is up to you in most states to prove your innocence of any wrong doing before you can get your property back. That often means fighting the government in lengthy and expensive courtroom battles, which can cost more than the value of the property taken. It’s no surprise then that even innocent property owners walk away from their property rather than fight.

In some states, it’s not enough even to prove your innocence. Take, for instance, the infamous Supreme Court case Bennis v. Michigan from 1996. When Tina Bennis’s husband used the family car to solicit a prostitute in Detroit, it was seized under the state’s civil forfeiture laws. Ms. Bennis argued that she shouldn’t lose her half of the car since she had no knowledge of her husband’s wrongdoing and certainly did not consent to it. Too bad, the Supreme Court ruled: that’s how civil forfeiture works — you can lose your property if it was involved in a crime, even if the crime was committed by someone else wrongfully using your stuff.

Worse, the property taken by many law enforcement agencies using civil forfeiture is not turned over to the government for general use, but is kept by the very agencies that seize the property, creating an incentive to abuse the power.

In recent years, high-profile lawsuits by the Institute for Justice and the ACLU on behalf of innocent owners resisting civil forfeitures have created momentum for reform. Several states, including Montana, New Mexico, and California, have changed or repealed forfeiture laws to require prosecutors to convict a person of a crime before their property is taken (or placed other limits on law enforcement to protect innocent property owners). All told, nearly 20 states have enacted some kind of civil forfeiture reform in recent years, and in 2015, former Attorney General Eric Holder implemented policies to limit the use of civil forfeiture laws by federal officials in some cases.

But President Trump made headlines last month when he expressed support for civil forfeiture, and Attorney General Jeff Sessions is on record as a strong opponent of forfeiture reform during his years as a senator. Law enforcement agencies frequently lobby against such reforms, arguing that civil forfeiture helps police keep ill-gotten money out of the hands of serious criminals, but this is contrary to the evidence: civil forfeiture laws don’t mainly affect big-time criminals or drug kingpins. A recent report by the Drug Policy Alliance, for instance, showed that 94 percent of forfeitures in California are less than $5,000 in value.

However, some promising statements have come from other Republicans, including Senator Rand Paul and Congressman Justin Amash, who have indicated that they intend to introduce federal legislation to rein in the practice.

The right to keep what is yours, and the security of knowing that government will protect that right, is fundamental to a just society. Civil forfeiture is one of the worst abuses of property rights: ending the practice should be high on the agenda of anyone defending liberty today.

Published by Learn Liberty