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Civil Asset Forfeiture: A Clear Threat to Property Rights in America

by Gary Johnson, published

Property rights are fundamental in America – or at least they are supposed to be.

Yet each year, prosecutors and law enforcement agencies seize hundreds of millions of dollars’ worth of cars, homes, cash and other property, with no due process to determine guilt or innocence, or even without even filing charges against the property owner.

It’s called asset seizure or civil forfeiture, and it’s just wrong.

By claiming that you or your property are related to criminal activity, the government just “takes your stuff.” It can be a police officer making a traffic stop and finding “suspicious” cash, or a prosecutor taking a person’s home, car or bank account, without a conviction or even filing criminal charges.

Once the government takes the property, getting it back usually requires a costly, complicated, and humiliating process.

And if you don’t get it back? The government keeps it or sells it — and profits from the proceeds.

Creating perverse incentives for law enforcement officials to seize as much property as possible

Even worse, in many instances, the law enforcement agency gets a cut, creating an obvious incentive to seize as much property as possible.

As Americans learn – or experience – this obvious affront to property rights, polls show they overwhelming oppose it and want it stopped. Nevertheless, too many politicians and government agencies are addicted to the profits and don’t want to give them up.

Asset seizure and civil forfeiture happen at all levels of government: Local, state and federal.

Federal reforms to civil asset forfeiture under Obama have been jettisoned by Trump’s Justice Department

At the federal level, the U.S. Department of Justice had, until 2015, used a process known as federally adopted forfeitures to empower local law enforcement to seize the proceeds from crimes and share the booty with federal officials.

In the face of growing controversy around the topic, in 2015 former Obama administration Attorney General Eric Holder clipped the policy as part of a broader curtailment of police powers.

But in July, Attorney General Jeff Sessions revered this policy, reviving this despicable practice. In essence, the Sessions policy allows local law enforcement to go to the federal government and circumvent state laws designed to reform abuses in this process.

States have been leading the charge for reform of this portion of the criminal justice system

Among the states leading the charge for reform include California, Connecticut, Illinois, Maryland, Michigan, Nebraska and my own state of New Mexico.

In Illinois, legislation passed this year requires a higher level of proof for the government to seize someone’s property beyond simply probable cause. The bill was signed into law by Gov. Bruce Rauner, and now the Illinois law creates the option for innocent parties seeking to recover their assets to have their claims expedited.

Officials at the American Civil Liberties Union have called the law in New Mexico’s law “the gold standard” for state efforts. Here, the state requires that a person be criminally convicted before the suspect’s property is seized.

The law also stipulates that forfeiture proceeds go to a general state revenue fund. This eliminates one of perverse incentives created by allowing the police department to directly pocket the funds.

Our America Initiative is seeking to build on the progress, and counter the regression at the federal level

Our America Initiative, the national grass-roots organization for which I am the Honorary Chairman, is undertaking a nationwide effort to build pressure on state legislatures, city and county governments, and ultimately, the federal government to end these practices.

Civil forfeiture must be brought to an end, and replaced with criminal forfeiture. In short, a person must be convicted of a crime before losing his property. And laws must be strengthened to insure police officers have real probable cause before seizing anyone’s property.

We hope to work with state and other sympathetic elected officials to root out the bad and build on the good. In particular, we want to highlight positive developments at the state level by developing more “model” legislative approaches that can be replicated from state to state.

But ultimately, the federal government also needs to listen. And we need pressure on the Trump administration to get his Justice Department to back down and reverse the recent changes to federally adopted forfeitures.

Editor's Note: This article originally published on The Jack News, and was republished on IVN with permission from the author. 

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