July 10, 2020


Fixing Civil Asset Forfeiture

By: Reggie Wallace

Last month, AF kicked off an event series on criminal justice reform with a discussion on civil asset forfeiture hosted by our Phoenix chapter.

Civil asset forfeiture (CAF) is the process by which law enforcement officers are permitted to take assets or property from people who have suspected involvement in criminal activity. Seizing these assets requires neither formal charges nor documented suspicions of criminal intent. CAF traces its most prominent history of usage back to the War on Drugs in the 80’s where it targeted organized crime. Since drug cartels held their profits in the form of cash, it played an important role in legally seizing both drugs and large sums of cash. According to the US Justice Department, federal authorities had seized almost $3 billion in cash and other property after just 9 years under the Asset Forfeiture Program (1985).

In more recent times, CAF has turned from a method of stopping drug kingpins to targeting everyday citizens. Matt Miller, a Senior Attorney at the Goldwater Institute, remarked that police have begun to use CAF to create an income stream for their departments. Non-liquid assets such as boats, houses, and even music equipment are often put up to auction. Any capital gained from those assets then goes back to the police department. 

According to Jenna Bentley, the Directory of Government Affairs at the Goldwater Institute, the issue with CAF is that it does not require formal charges or any proof of relevant suspicion. Anyone can be a target of this policy. Officers can do this legally by simply saying that they believed the asset played a role in some form of illegal activity. The strategy that police seem to take is seizing property or cash that is valued at less than $1000. This relatively small value allows police to seize individuals’ property while having little to no potential for recourse. The only way for that individual to get their property back, is to take it to court and prove that the asset was not involved in any illegal activity. For the average citizen, hiring a lawyer and going to court for something less valuable than $1000 is almost never worth it. Thus, many civil asset forfeitures go unrefuted unless the value is substantial. 

Miller proposes three courses of action to fight the malicious use of CAF:

1. In the case of CAF due to criminal activity, states should recognize excessive fines in the form of seizures for minor crimes under the 8th Amendment (eg. seizing an entire house for suspicion that it played a role in a minor drug distribution charge).

2. States should switch the burden of proof to the government. They should be made to prove their suspicions regarding the asset.

3. The profit motive of asset seizures should be removed. This would entail making it unlawful for departments to keep income from the seizures. Rather, the money should be given to community initiatives like improving public education.

Bentley further emphasized the non-partisan nature of the initiative to reform CAF. This is not just an effort to quell police corruption, but to protect people’s property rights. 

For more on the subject, watch the full discussion here.