What is Civil Asset Forfeiture? Civil Asset Forfeiture (also known as civil judicial forfeiture) is a legal process in which police take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with any wrongdoing. This process has been implemented throughout history as an attempt to combat organized crime. Recently there has been a great deal of controversy over how police forces are using asset forfeiture. How did the concept of asset forfeiture originate and how has it been used throughout history?
History of Asset Forfeiture
In 1789, US Congress enacted the first statute to sanction ships used in customs violations. As time went by, different issues were fought through asset forfeiture statutes pertaining to assets used during illegal activity. Between 1920-1933 the government started using asset forfeiture legislation to fight for prohibition. Police started seizing vehicles and equipment from bootleggers suspected for being used to make or transport alcohol. After the Prohibition era ended, common use of asset forfeiture had a brief hiatus until a new issue came to light – the war on drugs.
Throughout the 1960s recreational drug use became more mainstream and less stigmatized in the US. Over the next eleven years, the situation became so dire that President Nixon declared a war on drugs in June 1971. In 1978, asset forfeiture law was expanded to permit forfeiture of all money and/or “other things of value furnished or intended to be furnished by any person in exchange for a controlled substance and all proceeds traceable to such an exchange.”
Since 1980, there have been many attempts to decrease drug trafficking and consumption in the United States. According to DrugAbuse.net, the DEA makes over 30,000 arrests per year that are related to sales and distribution of illegal narcotics. The drug trafficking business in Mexico alone is worth over 50 billion US dollars per year. Here is a table from the DEA depicting type and amount of domestic drug seizures in the United States.
| DEA Domestic Drug Seizures | |||||
| Calendar Year | Cocaine (kgs) | Heroin (kgs) | Marijuana (kgs) | Methamphetamine (kgs) | Hallucinogens (dosage units) |
| 2013 | 22,512 | 965 | 267,957 | 3990 | 116,215 |
| 2012 | 36,694 | 999 | 388,059 | 4,622 | 870,203 |
| 2011 | 32,374 | 1,075 | 575,960 | 2,485 | 3,954,732 |
| 2010 | 30,053 | 713 | 725,858 | 2,188 | 2,604,797 |
| 2009 | 50,704 | 618 | 671,650 | 2,007 | 3,422,593 |
| 2008 | 50,461 | 605 | 662,137 | 1,518 | 9,311,715 |
| 2007 | 98,065 | 623 | 360,708 | 1,112 | 5,677,739 |
| 2006 | 71,604 | 816 | 328,275 | 1,804 | 3,745,560 |
| 2005 | 118,128 | 622 | 283,382 | 2,161 | 8,868,465 |
| 2004 | 117,844 | 669 | 266,088 | 1,656 | 2,196,988 |
| 2003 | 73,720 | 788 | 254,242 | 1,680 | 3,038,916 |
| 2002 | 63,513 | 709 | 238,646 | 1,347 | 11,824,798 |
| 2001 | 59,415 | 747 | 272,120 | 1,634 | 13,863,756 |
| 2000* | 58,674 | 546 | 331,964 | 1,771 | 29,293,957 |
| Source: DEA (STRIDE) | |||||
| *CY 2000 had several large LSD Seizures | |||||
| CY 2013 statistics are preliminary and subject to updating | |||||
Drugs are not the only issue that asset forfeiture laws combat, human trafficking and other transportation related criminal activities are also fought with this statute. Civil asset forfeiture exists as a tool to take down organized crime in the US. Its premise is to focus on the leaders, the dealers and their organizations. By having the option to seize assets and ill-gotten gains, the government can take away capital from the organizations in pursuit to fight against them on home soil. So with all these issues and a statute that helps the US fight against them, why is there so much controversy surrounding civil asset forfeiture?
The Controversy
The main issue with civil asset forfeiture is that it is not the person, but the property itself, that is charged with the involvement of the crime. In order to get back seized property, people either have to pay a fine or prove that the property itself is not guilty of the crime or association with the crime. Many jurisdictions apply the money and assets from civil asset forfeiture practices to pay for salaries, advanced equipment or other items. This is where the issue arises. When salary is on the line, there is a stronger incentive to increase seizures in order to support the jurisdictions’ needs. These seizures often go hand-in-hand with racial profiling, unfairly impacting black and Hispanic people.
One of the most famous controversies was 2008, “Funk Night”, at the Contemporary Art Institute in Detroit. In the middle of an event, armor-clad police stormed the party, forced attendees to the floor, and seized 44 vehicles. This was a result of the Art Institute failing to obtain a permit to serve alcohol. Based on modern civil asset forfeiture law, the police determined that everyone there was complicit simply because they had attended the party. Because their cars were used to transport the users to the party, the cars were also “guilty” and subject to seizure. Attendees had to pay $900 or more to have their vehicles returned. A federal district court judge ruled that the Funk Night seizures were unconstitutional.
A second prominent case was Tenaha, Texas from 2006-2008. There were over 150 accounts of men and women, many black and Hispanic, who were made believe they would lose their freedom or children unless they “willingly” parted with their legal property. Although Texas law requires that civil forfeiture proceeds be used only for “law-enforcement purposes”, Tenaha law enforcement used its seized assets to give out out donations to local organizations, buy hundreds of dollars of candy and a $524 popcorn machine. Because of this, Texas lawmakers enacted modest civil asset forfeiture legislation reforms. However, not before a class action lawsuit was filed against the city.
Here are the agreements from the settlement:
- Police will now be required to observe rigorous rules that will govern traffic stops in Tenaha and Shelby County.
- All stops will now be videotaped, and the officer must state the reason for the stop and the basis for suspecting criminal activity.
- Motorists pulled over during a traffic stop must be advised orally and in writing that they can refuse a search.
The People, The Regulations and and Recent Bills
These are only cases and situations from two different states; here is an infographic that demonstrates the standard of proof needed for legal forfeiture in all states.
After many issues with civil asset forfeiture, public opinion and support of this statutes has decreased. Here is an infographic demonstrating the public opinion of these statues.
It is clear that many people in the United States do not agree with how this statue is being used. Many people want the state laws changed, demonstrated by how many bills are in state legislation in 2015.
It is difficult to distinctly be able to say that civil asset forfeiture is good or bad, because the premise is good. Virginia HB716 created new felonies for trafficking in persons for forced labor or sexual servitude and allowed seizure and forfeiture of property used in committing such felonies. Texas proposed a bill (HB259) relating to forfeiture of property used in the commission of certain littering offenses. Colorado introduced a bill (SB006) that attempts to repeal the provisions authorizing a forfeiture action to proceed without a conviction unless it is part of a settlement agreed upon by all parties. Obviously states are moves towards more regulations on on civil asset forfeiture and the new issues it can be used to combat. Do you think that this statute has the potential to do more good than harm? What changes would you recommend?
Update:
New Mexico passed a law stating that law enforcement cannot confiscate your property without criminal conviction. Tech Dirt explained that after some police confiscated property it “would be kept by filing a civil lawsuit against the stuff itself rather than the person. There didn’t need to be any criminal conviction at all.” HB 560 is one of the first in a long line of different states fighting against unfair civil asset forfeiture. Virginia’s HB 1287 crossed over on February 11, 2015 and is waiting to be voted on. SF 0014 was passed and then vetoed by Wyoming’s governor on February 27, 2015. This bill was aimed at amending and expanding procedures and requirements for forfeiting and seizing property.
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