Imagine a police officer pulls you over and tells you he believes the cash you're carrying was used to in some illegal activity and — based only on that hunch — he is going to take it from you without charging you with a crime. Impossible, you think? Welcome to the down-is-up and black-is-white world of civil forfeiture, where our civil liberties and property rights are under assault.
Consider the story of Javier Gonzalez: In August 2005, Gonzalez borrowed a car from his employer in Austin, Texas, and drove to Brownsville to visit his dying aunt and to make arrangements for her funeral. He brought more than $10,000 in cash to provide for her burial. On his way, Gonzalez was pulled over for having an improperly attached license plate. When officers found the cash, they handcuffed Gonzalez and took him in for investigation. A search revealed no drugs or contraband, but officers seized the money anyway. They told Gonzalez that he could either sign away his legal right to the cash or face money-laundering charges and have the car seized — despite a lack of any evidence of criminal activity. He signed away his rights. Gonzalez was fortunate enough to be able to hire a lawyer to challenge the forfeiture and, in 2008, three years after his money was taken, it was returned. Others are not so lucky.
As outlandish as these facts seem, this happens every day across the country to the tune of hundreds of millions of dollars a year. Under federal law and the laws of 42 states, law enforcement officials are entitled to keep most (and sometimes all) of the money and property they seize. The money goes to pay for salaries, advanced equipment and, in one Texas county, travel to Hawaii for "training." When salaries and perks are on the line, officers have a strong incentive to increase and cash in on seizures rather than seek the neutral administration of justice. Research bears out this connection: In a recently released national report entitled Policing for Profit, independent criminal justice researchers examined national forfeiture data and found clear evidence that law enforcement acts in pursuit of profit. And when state laws make forfeiture harder and less profitable, state and local law enforcement circumvent those restrictions by turning seizure cases over to federal prosecutors, who then prosecute the cases and return as much as 80 percent of forfeited proceeds back to the states.
The numbers involved are staggering. In 2008, the Department of Justice's forfeiture fund topped $1 billion. By contrast, in 1986, the year after the profit incentive was put into the law, the fund took in $93.7 million. This money does not account for the hundreds of millions seized by state law enforcement agencies. Nor is such an accounting a simple matter, as most states fail to collect data about forfeiture proceedings in their state and the use of forfeited assets.
Forfeiture is profitable for law enforcement in part because the procedure for retrieving seized property is arduous. The government holds most of the advantages in civil forfeiture proceedings, and property owners must go to court to make their case. That's a serious barrier for people who don't have $5,000 to spend on a lawyer's retainer fee. Even if you are lucky enough to hire a lawyer, the complicated forfeiture procedures are difficult even for a lawyer to understand.
The civil forfeiture laws were supposed to help fight the war on drugs, by making sure that crime wouldn't pay. But this broken system also sweeps innocent property owners into its net, seizing money based on a premise of drug activity with no hard evidence and no requirement to prove anything to a judge. It's no surprise that asset forfeiture practices disproportionately impact low-income, hard-working African-American or Hispanic people who the police decide look suspicious and who have little means to challenge their plight.
There have been previous attempts at reform. In 2000, Congress passed the bi-partisan Civil Asset Forfeiture Reform Act (CAFRA), which created much-needed procedural protections for property owners facing federal civil forfeiture. After the passage of CAFRA, many incorrectly assumed that the civil forfeiture problem was solved. As a recent set of high-profile scandals in Texas and Minnesota make clear, however, when government has the power to seize assets without ever having to prove a crime or even go before a judge to justify the seizure, abuses are practically guaranteed to ensue.
Reform remains desperately needed. The best solution is to require a conviction before the government can take property, as is the rule in North Carolina. This would allow law enforcement agencies to seize criminal profits legitimately, while protecting innocent property owners from having to spend months or years in court fighting to reclaim their money. States must be required to collect data on their forfeiture rates and where the money is going, bringing transparency to their use of this powerful and invasive tool. Most importantly, the funneling of money back into the budgets of law enforcement agencies must end. Rather than giving police and prosecutors a direct financial incentive to increase forfeitures, states and the federal government should put that money into a general, neutral fund, perhaps for education or drug treatment.
Giving government the power to seize property at will based on mere suspicions of criminality opens the door to corruption and abuse of power. Incentivizing law enforcement to fund itself off the backs of low-income motorists, most of whom lack the means of fighting back, without hard evidence of criminal activity is no way to run our justice system. These are principles that we should all be able to agree on.
— By Scott Bullock & Vanita Gupta. Scott Bullock is a senior attorney at the Institute for Justice and a co-author of Policing for Profit: The Abuse of Civil Asset Forfeiture. Vanita Gupta is director of the ACLU's Center for Justice.