Will the Courts Eventually Strike Down Civil Forfeiture?

This article originally appeared in my column on Newsmax.

Since the country’s founding, the right to property has been a cornerstone of American democracy. U.S. citizens should feel secure that the government cannot take their hard-earned property without just cause — a notion that is immortalized in the Due Process Clauses of the Constitution.

This long tradition of protecting private property is what makes civil forfeiture laws so appalling.

Civil forfeiture is the controversial legal process through which law enforcement officers can seize the assets of persons suspected of illegal activity, under the pretense that the property may be related to a crime. Officers have no need to prove that the person is actually guilty of any wrongdoing before taking the property. If the person cannot prove that the property is not connected to a crime, the government can sell the property and retain the profits. Civil forfeiture turns the idea “innocent until proven guilty” on its head — people are deemed guilty, and forced to prove themselves innocent.

The justification for this policy is that it gives law enforcement officials leverage over powerful criminal organizations, and that the proceeds from sold assets provide important funds for law enforcement agencies. Civil forfeiture first became prominent in the 1980s, during the height of the war on organized crime.

Though these laws may have once served a legitimate purpose, they have been heavily abused over time. Critics of the policy argue that law enforcement agencies are incentivized to take property without good reason, because they can make a profit from the sale of wrongfully seized assets.

In some cases, this money is reportedly used improperly. The Tennessee Department of Safety and Homeland Security, for example, recently spent $110,000 of forfeiture money on catering and banquet tickets. By opening the door to misconduct like this, civil forfeiture laws make it possible to police for profit.

The injustice of civil forfeiture has not gone without notice. Since 2014, more than 20 states have passed laws reforming civil forfeiture, with some of them eliminating the process altogether. Unfortunately, these efforts could all be for naught. Attorney General Jeff Sessions recently announced that he plans to resurrect the federal civil forfeiture program. This move would undermine state reforms, because state law enforcement officials would have civil forfeiture power under federal law.

Sessions purports he is supporting Trump’s hard-on-crime agenda; though, both liberals and conservatives despise civil forfeiture as an attack on the rule of law. Sessions’ reforms would allow “federal adoption” of civil forfeiture assets. This means that state officials can work with federal authorities to circumvent state law, and “adopt” assets for federal prosecution. After sale, the federal government will return 80 percent of the proceeds to the states.

What civil forfeiture laws are really hard on are the innocent people whose assets are seized. Because civil forfeiture cases are technically civil actions, people do not have the same protections as criminal defendants. This usually means hiring an expensive lawyer, and high court costs; the drawn-out process sometimes forces people to return to court up to 12 times in a year.

And it’s not just a rare oddity that innocent people are affected by civil forfeiture laws. In one study, almost half of the DEA’s seizures in a random sample weren’t related to any broader law enforcement purpose. The government is essentially robbing the American people — in 2015, civil forfeiture seizures nationwide surpassed the collective losses from burglaries that same year.

Though Sessions’ announcement suggests a rebirth of civil forfeiture laws, both the courts and Congress are showing signs of eventually rejecting the policy. Recently, a federal judge in Indiana ruled that cars cannot be seized by civil forfeiture, and that the lack of notice and opportunity to be heard makes the process unconstitutional. Additionally, Congress passed a bill to stop the IRS from raiding the bank accounts of small business owners under civil forfeiture law.

The Supreme Court has yet to take up the issue of the constitutionality of civil forfeiture, but there have been indications that a ruling might be on the horizon. In Nelson v. Colorado, the court laid the groundwork for future cases on civil forfeiture by ruling that the Due Process Clause prohibits states from making defendants go through “anything more than minimal procedures” to get exacted money back. In another similar case, Justice Thomas noted that the civil forfeiture system has “led to egregious and well-chronicled abuses” and that it “frequently target[s] the poor and other groups least able to defend their interests.”

Thomas’ comments suggest that the issue is brewing, and that the Court is just waiting for an appropriate case. A Supreme Court ruling would finally call civil forfeiture what it is — a grievous violation of one of America’s most fundamental rights.


Special thanks to Katherine Pickle, a member of Reid Law Firm, who helped write, research, and edit this article.


Photo courtesy of Flickr user Gage Skidmore