Civil Asset Forfeiture: Explained

For 38 years, Carole Hinders ran a family-owned restaurant in Spirit Lake, Iowa. Her restaurant was cash-only, so she deposited her regular earnings the same way. In August 2013, her life was turned upside-down when two Internal Revenue Service (IRS) agents knocked on her door and told her that the IRS had seized $32,000 from her checking account through a process called civil asset forfeiture.

Civil asset forfeiture lets the government confiscate the property (including cash, cars, or even houses) of ordinary Americans who have never been convicted of breaking the law.

In normal criminal procedure, the state accuses someone of a crime. But civil asset forfeiture cases aren’t brought against people—they’re brought against the property itself. This leads to wacky case names like Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin) and United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls.

Under civil asset forfeiture, if the government believes that someone like Carole might be a criminal, and that she used a given asset to facilitate a crime, then it can accuse her asset of breaking the law. Her property is then seized. The government then files suit to keep the property permanently, and if ordinary Americans like Carole want their assets back, then they need to show up in court to contest the government’s claim.

Civil asset forfeiture takes the bedrock of the American justice system, “innocent until proven guilty,” and flips it on its head. Property has no presumption of innocence, and no legal right to defend itself. In order to get their money, cars, or clacker balls back from the state, property owners must prove that their property wasn’t involved in any crime, which can be almost impossible to do.

Again, people like Carole aren’t even charged with a crime, let alone convicted in a court of law. Even so, they have to take time off of work, go to court, and perhaps pay for a lawyer, all in the off-chance that they will get their money back. If Carole hadn’t fought back, her business’ savings would have been forfeited to the government by default.

Even once someone like Carole goes to court, the deck is stacked against her. Civil asset forfeitures occur in civil court, not criminal court. In a criminal court, the defendant has access to a public defender, and is presumed innocent until proven guilty. The burden of proof to convict someone in criminal court is very high, “beyond a reasonable doubt.” But in civil court, the government only has to meet a “preponderance of evidence” standard. In other words, the state just has to show that it was more likely than not that the defendant’s property was used to facilitate a crime.

Who does civil asset forfeiture affect?

Civil asset forfeiture has exploded in recent years. The Department of Justice seized $28 billion between 2007 and 2016, and that’s just at the federal level. In the 26 states (plus the District of Columbia) in which civil asset forfeiture numbers were available, state and local agencies confiscated$254 million in 2012 alone. And those numbers are growing rapidly, as shown in this graph by the Institute for Justice (IJ), a libertarian law firm that specializes in fighting asset forfeiture.

Some states have passed forfeiture reform, but the government can circumvent these reforms via what’s known as federal equitable sharing. Through equitable sharing, law enforcement can turn a given civil asset forfeiture case over to federal agents, making it a matter of federal (not state) law. The federal government then returns (or “shares”) up to 80 percent of the proceeds to state and local law enforcement agencies.

It’s not just the Department of Justice that possesses this power. Some law enforcement agencies use civil asset forfeiture to pad their budgets with property seized from innocent Americans. The IRS can wipe out people’s bank accounts if it suspects them of a practice called “structuring,” or deliberately depositing small amounts of money to avoid the federal reporting requirements that come with larger ones. That’s how the IRS justified taking Carole’s money. From 2005 to 2012, the IRS used this practiceto seize over $242 million, almost all of it from law-abiding Americans.

Structuring is only a crime if the intent is to hide financial activity. Depositing small amounts of cash is perfectly legal so long as the person isn’t trying to avoid reporting requirements. Most of the people whom the IRS accuses aren’t attempting to hide anything. Many don’t even know what structuring is. Their bank accounts are seized anyway.

Why do we have civil asset forfeiture?

The program’s defenders claim that it robs criminals of their ill-gotten gains, and funnels that money back into law enforcement to stop future criminals. Civil asset forfeiture laws became common in the 1980s and 1990s to go after mob leaders and drug kingpins. These laws empowered police to seize the proceeds of organized crime, cutting into the profits of mob enterprises.  Subsequent laws expanded the reach of civil asset forfeiture.

While criminals shouldn’t get to keep the proceeds of their lawbreaking, we already have a system to prevent this. It’s called criminal asset forfeiture. Under criminal asset forfeiture, the government can seize criminals’ proceeds after they’ve been convicted of a crime. Civil asset forfeiture lowers the burden of proof to an unfair degree.

Civil asset forfeiture is especially harmful for low-income Americans, as they have to spend time and money in order to prove they are not criminals. Challenging a forfeiture requires showing up in court an average of four times. Missing four days of work might not be a big deal for an upper-level manager, but for someone living paycheck to paycheck, taking that much time off might mean they can’t afford to pay rent. Additionally, because claims are challenged in civil court, there’s no right to counsel. That means that claimants have to hire a lawyer out of their own pocket. People like Carole can sometimes count on pro bono counsel from IJ, but the Institute can’t represent everyone.

What are the incentives for law enforcement?

Also, funneling seized money back to law enforcement creates bad incentives for police. When police precincts get to keep or liquidate the proceeds of civil asset forfeiture, there’s an incentive for precincts to seize more assets than they should. While it’s certainly not the norm, this motivates some police to take innocent Americans’ property. This is especially problematic when the seized funds are spent on luxury goods and vacations instead of police equipment. For instance, one police department in Texas used proceeds from civil asset forfeiture to buy the department a margarita machine.

Civil asset forfeiture also drives police forces to seize more property than is reasonable. Police in Detroit raideda “Funk Night” at the Contemporary Art Institute of Detroit in 2008 because the Institute didn’t have a liquor permit. They seized 44 cars from attendees. Their justification? They claimed that because the owners (unknowingly) attended an event that was serving illegal alcohol, the cars were complicit in the crime and could be confiscated. The cars’ owners had to pay $900 each to get their cars back, which translated to substantial revenue for this particular police department.

If someone has to pay $900 just because they attended an art event that wasn’t properly licensed, was justice really served?

This kind of civil asset forfeitureis disturbingly common. The Institute for Justice notesthat in Texas and Virginia alone, the government seized roughly 1,000 cars per year from 2000 to 2017. Leroy Washingtonwas pulled over by the Indianapolis Metropolitan Police in 2016. Cops found a small amount of marijuana in his car. They charged Washington with drug dealing and seized his vehicle.

Civil asset forfeiture can suddenly and dramatically change a person’s financial situation, throwing their lives into chaos. Sometimes the IRS seizes a person’s savings. Other times, police pull a person over, search their car, and confiscate every penny they find. That’s what happened to Benjamin Molina, a 40-year-old carpenter who was pulled overin October 2008 in Emporia, Virginia for having tinted windows. Police asked him if he had cash in the car. When Molina said that he had $18,000 he was planning to use to buy a new car, police confiscated the cash.

Civil asset forfeiture hurts people who deal in cash, like Carole. That puts a lot of small business owners at risk. In 2013, over halfof small business owners dealt only in cash. Many business owners make this decision in order to avoid the substantial feesthat come with accepting credit cards.

Hardworking men and women are in  danger of having their money confiscated by law enforcement, simpluy because some police forces consider carrying cash to be inherently suspicious. Is a policy that punishes small business owners really consistent with the American Dream?

Is anyone working to change the laws? How can I get involved?

Civil asset forfeiture erodes due process and hurts the ability of ordinary Americans to save money and get ahead. Luckily, a bipartisan consensus is building for reform. Rep. Joe Crowley(D-NY and Chairman of the House Democratic Caucus) and Sen.Rand Paul(R-KY and 2016 Republican presidential candidate) have both proposed bills to curtail civil asset forfeiture. Raising awareness about Americans like Carole Hinders pressures lawmakers of both parties to get rid of civil asset forfeiture, or at least reform the program to restore due process.

As it stands, civil asset forfeiture erodes due process and puts the onus of responsibility on hard-working Americans to prove their innocence. It should be abolished: no one should have their property seized by the government without even being charged with a crime.

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