It’s a stultifying name for a frequently abused tool in law enforcement’s arsenal. Civil asset forfeiture is the name for the state’s ability to take your stuff if they suspect it’s been used in the commission of the crime. The problem is your stuff isn’t presumed innocent, and therefore getting it back can be a nightmare from which law-abiding citizens emerge stuff-less.
The Institute for Justice, my favorite law firm for economic liberty, is suing the city of Philadelphia over its takings of property from thousands of citizens. The civil forfeiture apparatus in Philadelphia racks up $6 million a year, according to IJ. Here’s how:
The plaintiffs in these Philadelphia cases have never even been charged with a crime, and under the forfeiture system, may never even see a judge before their property is taken from them:
The named plaintiffs are three Philadelphia residents who stand to lose their houses as a result of civil forfeiture actions by D.A., even though none of them has been charged with any crime. The District Attorney’s office regularly engages in the practice on the premise that the houses have been used as “instruments” of a crime (usually drug-dealing, usually by a relative).
The complaint does not go into specifics about what criminal activity the D.A. alleges took place in the houses involved, but emphasizes the impact of losing the houses would have on their owners. (One Plaintiff, Doila Welch, for example, shares her house with her siblings, including a cognitively disabled sibling, and their children. Welch, herself, suffers from mobility problems.)
Sen. Rand Paul put forth a forfeiture reform law in July to address such abuses as a part of his suite of criminal justice reform ideas. First, a description of the FAIR Act from Paul’s office:
The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property. State law enforcement agencies will have to abide by state law when forfeiting seized property. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General’s Asset Forfeiture Fund to the Treasury’s General Fund.
“The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime. The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime,” Sen. Paul said
The bill would also require states “to abide by state law when forfeiting seized property.” This is important. Currently, a number of state legislatures across the country have passed reform bills to rein in forfeiture abuses. The problem is that the federal government has a program known as “adoption” or “equitable sharing.” Under the program, a local police agency need only call up the Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives or similar federal agency. That agency then “federalizes” the investigation, making it subject to federal law. The federal agency then initiates forfeiture proceedings under the laxer federal guidelines for forfeiture. The feds take a cut and then return the rest — as much as 80 percent — back to the local agency.
As with many government functions, this one has a place and a rightful use, but its potential for abuse is great. Often, the proceeds from forfeitures go directly back to the agencies who did the seizing, so you can imagine the incentives and how well they’re resisted.