In the last fifteen years police departments across the country have seized $2.5 billion – yes, billion – from more than 62,000 citizens who were never even charged with a crime, let alone convicted. Law enforcement agencies across the U.S. do this under the civil forfeiture law, which allows law enforcement agencies to take assets from persons suspected of engaging in illegal activity without having to actually prove that there was a crime. If you carry cash the next time you head out for a drive, you should fear the civil forfeiture laws.
Property has fewer rights than a person
The rationale behind the civil forfeiture is that the issue at dispute is a piece of property, not a person and property has far fewer rights than does a person. There is also a procedure for criminal forfeiture, but since that requires a greater burden of proof on the part of law enforcement, civil forfeiture is the preferred course.
John Oliver raises issue
John Oliver, the host of HBO’s “Last Week Tonight,” raised the issue in a broadcast from mid-2014. For many, it was a wake-up call to the “sort of police behavior that we laugh at other countries for, along with their accents and silly hats,” as Oliver put it.
But, this is no laughing matter to the thousands of Americans who have been stopped while driving and had money seized based on nothing more than a suspicion on the part of the cop that the money was from, or intended for, an illegal activity. Most of the seizures are for a small amount, often under a $1,000 and the cost for a citizen to retain a lawyer and go through the court system to challenge the seizure is often far more than the amount at stake.
Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures. — The Washington Post
Finding the right target
According to The Washington Post, this has led to a new business for firms that specialize in teaching police departments on the techniques of “highway interdiction.” There are videos and training materials that instruct police which motorist are good targets to stop in the hopes of finding assets (usually cash) that can be seized without ever having to charge or convict someone of a crime.
Police often keep 100% of seized assets
The police have plenty of incentive to seize assets under the civil forfeiture law. In 25 states, and at the federal level, the police or agency taking the funds are allowed to keep 100% of the amount seized. In other states, they are permitted to keep between 45-95% of the monies taken, with the rest going into the state’s general fund.
The Department of Justice and many law enforcement agencies feel that civil forfeiture is an important tool in the war on drugs and other crimes. There is no reason to doubt that in some, perhaps even a majority, of cases there was probably a crime involved with the money. But, what bothers many is that innocent citizens have their assets taken without the traditional right to due process that is a foundation of the legal system.
A law enforcement officer will typically say that this is stuff taken from criminals. My response is, how would they know? They don't charge anyone, much less convict them. People say this is an essential crimefighting tool but there's no evidence. — Dick Carpenter, Institute for Justice
States are reforming laws
John Oliver’s broadcast has resulted in renewed efforts to reform the civil forfeiture laws. In the past two years, ten states have passed some form of civil forfeiture reform. Last week, California Gov. Jerry Brown signed a bill that requires a conviction before assets can be seized. It also closes a loophole that allowed local agencies to transfer seized property to the federal government to escape the state conviction process. The California legislature had rejected a similar reform bill in 2015.