Are law enforcement agencies abusing civil asset forfeiture?

Civil asset forfeiture allows law enforcement agencies to seize private property or assets that are suspected of being used for criminal activity. Kenworthey Bilz is a University of Illinois law professor and an expert in criminal law and in psychology and the law. She spoke with News Bureau business and law editor Phil Ciciora about the controversial practice.

Is civil asset forfeiture a good law-enforcement policy?

Civil forfeiture rightly gets a bad rap. It allows the government to permanently take your money, car, real estate or any property if it can prove they were used to further criminal activity. In most states, you don’t even have to be convicted of – or, sometimes, charged with – a crime beforehand. In other words, civil asset forfeiture sounds like the kind of thing that might happen in a banana republic, not a society governed by the rule of law.

But since the nation’s founding, civil asset forfeiture has allowed law enforcement to hit criminals where it hurts, and drain criminal enterprises of the assets they need to sustain their misdeeds. Moreover, it’s sometimes not possible to prosecute criminal wrongdoers directly. Perhaps they live overseas, or their network is so complicated or well-shrouded that it’s all but impossible to find them. In such cases, civil asset forfeiture is a valuable tool for law enforcement to deter criminal activity without even having to catch the bad guy, and its use has been steadily increasing in recent decades.

How does civil asset forfeiture not run afoul of the Constitution’s Fifth Amendment?

The Fifth Amendment gives us certain protections from arbitrary government action. It demands that before government can take our property, for example, it must give us “due process of law.” The question, though, is what process is due?

Critics of civil asset forfeiture point out that, unlike in a criminal prosecution where the state must prove its case “beyond a reasonable doubt,” in a civil forfeiture action it only has to prove that an asset was used to further criminal activity by “a preponderance of the evidence,” a much lower standard.

Worse, since the action is against the property itself, innocent owners can lose their assets, even if they themselves were not engaged in nefarious activity. Think of a motel owner whose rooms repeatedly get used for prostitution or drug deals. As a consequence, these critics feel that civil asset forfeiture proceedings are insufficiently protective of property rights.

Supporters respond that, unlike with criminal prosecution, where one might lose one’s freedom, the most one can lose in a civil asset forfeiture is one’s stuff. Arguably, this justifies a more relaxed standard of proof and fewer procedural protections. Realistically, though, the loss of one’s home and savings can have a more devastating effect on a person than even a short jail sentence.

The U.S. Supreme Court has heard many challenges to civil asset forfeiture, but has never found that the Fifth Amendment (nor the Sixth, Eighth or Fourteenth amendments) categorically bars it, even though it has held that the Constitution does put some limits on it – for instance, requiring owners to be provided with notice, and forbidding confiscation that is grossly disproportionate to the crime.

The spoils of civil asset forfeitures are given to law enforcement agencies. Should it give us pause that the law gives police an incentive to seize assets? In other words, does it create a profit motive among police?

Though civil asset forfeiture could, in principle, be used in a sensible way that comports with norms about the rule of law while still buttressing the ability of law enforcement to protect the public from criminal wrongdoing, it can also be deployed in unreasonable and even abusive ways. Sadly, that has become common.

Why did federal civil asset forfeiture start to rise in the mid-1980s? Because that was when federal, and then state, law changed to allow forfeited property to be retained by the agency that seized it. Before that, proceeds were deposited into the general treasury, meaning law enforcement officials had no monetary incentive to pursue these cases. The change in law suddenly gave cash-strapped local police departments a strong motive to pad their budgets by seeking assets in civil forfeiture.

This has led to truly abusive and even disgusting trends. Some investigations have found examples of departments spending more resources and efforts pursuing the assets of criminal offenders than pursuing the criminal offenders themselves. Some departments exacerbate the potential injustices to innocent owners by telling them that if they sign waivers agreeing not to challenge the forfeiture, the police will agree not to arrest them.

The law is supposed to penalize high-flying criminals and kingpins. But how does it also harm the poor and minorities?

It harms any innocent owners who must spend considerable effort and resources to reclaim their property, and who, because this is a civil proceeding, do not get the benefit of a free lawyer if they cannot pay for one themselves. This is obviously far worse for those who have few assets to begin with. And naturally, to the extent law enforcement engages in racial profiling in deciding whose assets to seize, this is especially burdensome on minorities.

How does the law need to change at the state and federal level?

Hard-line critics have made interesting bedfellows here: Both the left-leaning ACLU and the right-leaning Institute of Justice would like to get rid of the institution altogether. However, simply returning to a world where forfeited assets are paid to the general treasury, or perhaps to victims of crime, would do a great deal to curb the worst abuses, and would preserve the ability of law enforcement to use the procedure when doing so actually is in the best interest of the public.