Photo courtesy of Mayu via Flickr.
When the government seizes property or money based on suspicion, it can be nearly impossible to get it back.
This practice is called civil forfeiture, which allows police to “arrest” not a person, but their property. Typically, the American legal system finds defendants innocent until proven guilty — but under civil forfeiture, the opposite is true.
There doesn’t need to be proof for the seizure of assets, only suspicion. Even so, the owner must prove their innocence to regain what’s theirs. If you think this sounds unconstitutional, well, you’re not the only one.
How it works
So, if 4th Amendment explicitly prohibits unreasonable search and seizure, and the 5th grants citizens due process, what makes civil forfeiture okay?
Well, since the dispute does not involve a person, and is instead a case of police vs “thing,” there appears to be a loophole where the “thing” can be guilty, even if there is no proof the owner is. Because these are civil actions, property owners don’t enjoy the legal protections that criminal defendants do.[contextly_auto_sidebar id=”tcIyQOJTR2RINA14cFTjdmV8W4VjUNqE”]This results in ridiculous-sounding lawsuits such as “US v. Approximately 64,695 Pounds of Shark Fins.”
Civil forfeiture dates back to the beginning of the country, having been modeled off of British maritime law that let the government confiscate the property of guilty persons at sea that could not be apprehended on land.
During prohibition, civil forfeiture was implemented to seize the assets of bootleggers. But it wasn’t until the war on drugs in the 1980s and onwards that the police began to systematically seize property, businesses, money, and benefit directly from the profits.
Civil forfeiture was designed as a method to allow law enforcement to handle illegal activities, and the assets thereof, by confiscating and redirecting the value of property and other assets to the police.
Since narcotic trading results in $12 billion in annual profits, illegal organizations can be thwarted by civil forfeiture, which in theory repurposes “bad” money for good reasons, and supplements poor police budgets.
This also directly incentivises police forces to fight drug crimes, and in theory remove the financial incentive of criminals by making their ill-begotten profits “disappear.”
Incentivising the seizure of valuable assets is a recipe for corruption.
According to endforfeiture.org, 80 percent of those that have their property seized by the federal government are not themselves charged with crime. Calling it “state-sanctioned theft,” the organization also notes that 42 states keep all of the cash, cars, homes, and property they seize.
And it gets even more damning. Authorities in New Mexico have conducted seminars on how governments can profit from the practice, and Philadelphia police have seized a stunning amount of assets to the tune of $64 million in ten years.
Individual cases of wrongful seizure, in which innocent suspects have had homes and businesses seized without the chance to defend it, have been more than enough to raise some eyebrows and increase media scrutiny.
Typically, police can use the money from assets seized for almost any cause with minimal oversight. Though some of the money is donated, it has been also been used to fund expensive parties and vacations, margarita machines, fancy cars, and even (ironically) drugs and prostitutes.
Even individuals who helped architect the system in the early 80s have come out and said the program “began with good intentions but now, having failed in both purpose and execution, it should be abolished.”
Will there be reform?
As the U.S. begins to lighten its grip slightly on the war on drugs, the legal system has also begun to look more critically at civil forfeiture and the abuses it perpetuates.
Many call for the practice to be abolished completely, but it may take a while to get to that point. The Civil Asset Forfeiture Reform Act of 2014 seeks to raise the burden of proof that property is criminal by demanding concrete evidence, and for innocence to be proven by the government rather than the property owner.
At current, it’s estimated that the bill has just a 3 percent chance of being enacted.