National Review: Civil-Asset Forfeiture Should Be an Easy Place to Start on Criminal-Justice Reform
By Isaac Schorr
Since the death of George Floyd during his arrest by Minneapolis police officers in late May, Americans of all colors, creeds, and political predilections have recognized the need for improvements to the U.S. criminal-justice system. Unfortunately, any hopes of a comprehensive reform bill being passed this congressional term were dashed when Senate Democrats blocked Tim Scott’s (R., S.C.) JUSTICE Act in June. However, Representative Tim Walberg’s (R., Mich.) Fifth Amendment Integrity Restoration (FAIR) Act is an opportunity for Congress to nevertheless come together for bipartisan and meaningful change.
Law enforcement can currently seize and claim property through criminal forfeiture, administrative forfeiture, or civil forfeiture. Criminal forfeiture brings charges against the property of a defendant in tandem with charges against that defendant. A jury must rule the property forfeitable before the government can claim it as its own. Criminal forfeiture is left untouched by the FAIR Act. Administrative forfeiture, according to the Department of Justice, “permits the federal seizing agency to forfeit the property without judicial involvement” and applies to “merchandise the importation of which is prohibited; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value.” Walberg’s legislation tinkers with administrative forfeiture, but only marginally.
Civil-forfeiture reform is the principal focus of the FAIR Act, and for good reason: The process is broken. Under this form of forfeiture, the government brings charges against the property itself without leveling any against the property owner. On a federal level, criminal behavior need not be proven for law enforcement to initiate civil-asset-forfeiture proceedings; mere suspicion is considered reason enough. It’s worth noting that as California’s attorney general, Democratic vice-presidential nominee Kamala Harris strongly supported handing this same power to local law enforcement — for the people, of course.
Once proceedings have been initiated, the government needs to prove, by a preponderance of the evidence (51 percent sure), only that the property is subject to forfeiture. The burden of proof then belongs — in most states — to the owners of the property, who must show that they were neither involved in any criminal activity nor aware that their property was being used for criminal purposes, or that, if it were, then they took steps to end that criminal activity. Worst of all, property owners are not even necessarily entitled to legal representation. Whether they are granted this basic right is left to the discretion of the presiding judge.
Why has civil-asset forfeiture, which flies in the face of American expectations of due process and the presumption of innocence, been allowed to persist in its current form? It’s all about the Benjamins. The federal government takes in net revenues exceeding $1 billion annually from asset forfeiture, and states share in the cash cow through “equitable sharing.” This practice, which sounds innocent enough, provides local authorities with perverse incentives. Per the Institute for Justice, equitable sharing allows law enforcement to “bypass state laws that limit civil forfeiture. By collaborating with a federal agency, they can move to forfeit property under federal law and take up to 80 percent of what the property is worth,” which gives them “a direct financial stake in forfeiture encourag[ing] profiteering and not the pursuit of justice.” What police department would not take advantage of such a profitable opportunity, particularly when those profits are not subject to the same oversight as taxpayer dollars?
The problems with civil-asset forfeiture are many; the FAIR Act addresses nearly all of them. It would raise the evidentiary standards that the government needs to meet to the “clear and convincing” level. It would place the burden of proof on the government to show a property owner’s knowledge of criminal activity rather than asking property owners to make the case for their innocence. It would guarantee property owners the right to legal representation. Perhaps most important, it would end equitable sharing, incentivizing police departments to stop spending their time pursuing frivolous forfeiture claims. The act’s changes to the reporting structure are also important. The Justice Department does not currently provide a public breakdown of how much of their annual seizures are criminal, administrative, and civil forfeiture, respectively. The FAIR Act would mandate such a breakdown.
Critics of these reforms might argue, as Kamala Harris has, that civil-asset forfeiture “equip[s] local and state law enforcement with more tools to target . . . illicit profits” and to “dismantle . . . dangerous organizations.” But it also leads to abuse and horror stories, such as that of Roderick Daniels, a Texan pulled over for going two miles over the speed limit in 2007. When police discovered $8,500 in Daniels’s vehicle that he had on hand to pay for a new car, they threatened to charge him with money laundering unless he handed over the cash. Stories such as Daniels’s are far too common.
Other defenders of the status quo might argue that civil-asset forfeiture is too important a revenue source for local law-enforcement agencies and should not therefore be curtailed. But it is not the job of the citizenry to foot the bill by way of unjust seizures. They already pay for department budgets with their tax dollars. If those departments need more funding, it’s up to local officials to allocate more resources to them.
The FAIR Act has been endorsed by the Heritage Foundation and American Civil Liberties Union and is cosponsored by legislators as liberal as 2016 Bernie Sanders backer Tulsi Gabbard and as conservative as Freedom Caucus member Paul Gosar. A functioning Congress acting in the best interest of the American people would take notice of this broad consensus and act swiftly to pass this piece of commonsense legislation.
ISAAC SCHORR is an ISI Fellow at National Review. This op-ed originally appeared in the August 21 edition of National Review.