People Have Few Protections Against Law Enforcement Civil Asset Forfeiture Practices
Imagine a world where police officers regularly confiscate property from civilians, based only on officers’ accusations of criminal conduct. Imagine that these allegations are never examined by a judge and that charges of criminal conduct are often never even filed.
Unfortunately, you don’t have to imagine anything, because that is the world we live in.
This is the topsy-turvy world of civil seizure and asset forfeiture – where just the suspicion of criminal conduct by a law enforcement officer is enough for the seizure of property. Just an accusation can be sufficient proof to seize, for example, a car, a house, or a purse containing currency – and for the property’s eventual forfeiture to the government.
The scope of this confiscation has become so large that, in recent years, the value of the property seized just by the federal government outweighs the value of property stolen by burglars.
Protections against seizure and forfeiture are so fragile that they encourage law enforcement officers to treat every roadside encounter like an interaction with a career criminal. The law encourages the investigation, detention, and search of motorists for crimes that have nothing to do with automobile travel. The possession of cash, for instance, serves as sufficient evidence that the cash is related to crime and therefore justifies its confiscation.
Why are police encouraged to pursue seizure and forfeiture of currency and other valuable goods? Because a big portion of that confiscated property gets funneled into law enforcement budgets. Street-level officers are praised by their commanding officers when they execute cash seizures. Predictably, this practice drives a wedge between law enforcement officers and honest, law-abiding citizens. Some motorists will start viewing officers as predators, while some law enforcement officers will start to see those whom they are sworn to protect and serve as prey.
Where are our public officials who are supposed to look out for justice? They must balance budgets and are constantly on the lookout for new sources of revenue. Law enforcement agencies can lighten their budget burdens by increasing the take from seizure and forfeiture. That makes policymakers resistant to good-government types who call for reforms to seizure and asset forfeiture – reforms that would squeeze the bottom lines of government budgets.
Compounding the problem, advocates of seizure and forfeiture have pulled the wool over the eyes of policymakers, convincing them that a typical seizure involves hundreds of thousands of dollars taken from drug dealers. The truth is that the typical cash seizure is actually less than a thousand dollars.
That leaves the typical currency owner out of luck. If the victim of a cash seizure wants his or her money back, to retake possession, that person must demonstrate in court that it is unrelated to criminal conduct. Imagine the victim trying to find a lawyer who will represent him or her in court. Legal representation costs several thousand dollars. Even if you won in court, you’d still be a net loser. Most people whose cash is seized can’t afford to appear in court and argue for the return of their own property. This means they lose.
It doesn’t have to be this way. A few states – Maine, Nebraska, North Carolina, and New Mexico – have abolished civil forfeiture entirely. Perhaps more states will someday pass reforms to protect the property of their citizens.
Dan Greenberg is a lawyer, former state legislator, and author of a new report for the Competitive Enterprise Institute on civil asset forfeiture.