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There is Bipartisan Agreement on the ‘Uncivility’ of Civil Asset Forfeiture

Kanya Bennett,
Former Senior Legislative Counsel,
American Civil Liberties Union
Nkechi Taifa,
Senior Policy Analyst,
Open Society Foundations
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April 20, 2015

This piece originally appeared at the American Constitution Society’s blog.

“The FOP does not disagree that there is a need for civil asset forfeiture revision.” That is what the Fraternal Order of Police said at last week’s Senate Judiciary hearing on civil asset forfeiture. And when Chairman Chuck Grassley (R-Iowa) asked if FOP stood by those words, the response was “absolutely” – even though FOP’s testimony suggested otherwise.

Grassley even offered him some advice, saying that, now is “not the time to oppose needed reforms,” in light of national headlines on police violence.

This should make it clear to everyone that the time is ripe for federal reform. Though work remains to convince some that community policing instead of “slush funds” must be law enforcement’s number one priority, we should be optimistic.

Grassley said “legislation is necessary” and Ranking Member Patrick Leahy (D-Vt.) believes that “we can come together on a bipartisan basis to fix what is broken.”

For months there has been national discourse around civil asset forfeiture and all that is uncivil about it. Members on both sides of the aisle – and organizations across the spectrum – are demanding reform. And rightfully so.

Civil asset forfeiture gives law enforcement the power to take property away from someone who has not been convicted of a crime. And this property can be cash, cars, homes, and anything else – like a “simple gold cross” – that law enforcement believes is connected to a crime. Yes, a woman had her gold cross necklace seized when she was pulled over for a minor traffic violation!

And just how does one go about getting a necklace … or money, or car, or house back? Well, often they don’t. Due process requirements don’t require judicial hearings. More than 60 percent of federal forfeitures were uncontested over the past few years.

When property owners do get notice and muster the courage to go up against the government, they find the deck is stacked against them. Property owners bear the cost of going to court and the burden of proving their property’s “innocence.” And in almost all instances, property owners are not entitled to counsel.

So, what is driving this practice that sounds unfair, unjust, and un-American? How is it that we still have this “thorn in the side of civil liberties?” Civil asset forfeiture is big business for law enforcement at all levels – federal, state, and local. The practice generates billions of dollars annually and law enforcement is permitted to keep the assets it seizes.

Since 2008, state and local police have made more than 55,000 seizures of cash and property worth $3 billion dollars with the help of the federal government. And in 2014 alone, federal forfeiture laws were used to take in $4.5 billion dollars. This is why civil asset forfeiture has been called “policing for profit” and a “system of legal thievery.”

The price that people pay when their property is taken far exceeds the billions it generates. Civil asset forfeiture has long been used to carry out the ineffective and abusive “War on Drugs.” As has been said, “eighteenth-century maritime laws are being applied to [today’s] drugs laws and the repercussions are horrendous.” Just as the “War on Drugs” disproportionately impacts people and communities of color, so does civil asset forfeiture.

In the 1990’s, in Florida’s Volusia County, 90 percent of the drivers from whom cash was confiscated without arrest were Black or Latino. Then fast forward 20 years, to East Texas, where police seized $3 million dollars in a two year period primarily from African American and Latino drivers.

These civil rights and civil liberties concerns that generated broad support for the Civil Asset Forfeiture Reform (CAFRA) Act of 2000 exist today. We all recognize that CAFRA did not go far enough. And now is the time we all come to the table and do something about it.