Summary
Since the advent of the War on Drugs, law enforcement agencies have used civil asset forfeiture laws to strip Americans of billions of dollars in cash, cars, real estate, and other assets. Under these state and federal laws, officers are legally empowered to seize property they believe is connected to criminal activity – even if the owner is never charged with a crime. In most states, the agencies are entitled to keep the property or, more typically, the proceeds from its sale.
While federal forfeitures totaled $93.7 million in 1986, this revenue grew by more than 4,600% – to $4.5 billion a year – by 2014. Forfeitures handled by states have also poured millions, perhaps billions, of dollars into law enforcement agencies. As a result, there has been a massive transfer of wealth and assets from American citizens – and especially the most economically vulnerable – to police, who can largely use the funds however they see fit. Many states do not even require local agencies to track or report seized property. Though proponents of civil asset forfeiture claim that its revenue helps to fund more effective policing, evidence shows it has little impact on efforts to stop crime. Instead, it perverts the incentives of law enforcement, encouraging agencies to pursue strategies that maximize profit rather than ensure public safety.
How it works
In civil forfeiture cases, as many as 80% of people who have their assets seized are never charged with a crime. In most state and federal courts, the government is only required to show there is a “preponderance of evidence” (i.e., more likely than not) that the property abetted a criminal act. Proceedings are brought against the property, rather than the individual. These actions result in bizarre case names, such as State of Alabama v. One 2003 Toyota Corolla and United States of America v. $124,700 in U.S. Currency.
Without the need to issue a warrant or criminal charge, police are able to seize private property based on unsubstantiated claims. Using highway interdiction, for example, police can set up checkpoints, pull over motorists for minor violations, and seize their assets (usually cash) based on “indicators” of criminal activity. According to The Washington Post, these indicators can include signs as minor as “trash on the floor of a vehicle, abundant energy drinks or air fresheners hanging from rearview mirrors.” Law enforcement is also empowered to seize large assets, like a Massachusetts motel – frequently used as shelter for homeless families through Catholic Charities – that police insisted abetted drug activity. Homes have been seized from owners whose children or grandchildren were accused of committing drug crimes, even though the owners themselves were never implicated. In one money-laundering case in Florida, law enforcement seized approximately $49 million but did not bring a single indictment.
As a further complicating factor, in civil asset forfeiture cases the burden of proof in many states is placed on the property’s owner, who must prove that their property is unconnected to a crime. The costs associated with hiring a lawyer and paying court fees, especially in comparison to the value of the seized property, make forfeiture cases too costly and complicated for most people to defend. In an investigation into civil forfeiture in Philadelphia, for instance, half of all seizures of cash were in amounts less than $192, but taking off the four days required, on average, to attend court to resolve a case would cost a minimum wage-earning person $232 in lost income. Another investigative report found it took motorists an average of one year to resolve challenges to cash seizures. At the federal level, 88% of forfeitures go uncontested.
Origins in the war on drugs
Modern civil asset forfeiture laws, created with the intent to incapacitate drug traffickers, were introduced by Congress as one component of the larger War on Drugs. The first drug-related civil asset forfeiture provisions appeared under the 1970 Comprehensive Drug Abuse Prevention and Control Act and allowed law enforcement to seize drugs and all equipment used in their manufacture and transit. In the following years, Congress expanded the kinds of assets subject to forfeiture through civil action, rendering some assets’ connection to an alleged crime increasingly dubious. Civil forfeiture was also boosted under the 1984 Comprehensive Crime Control Act (CCCA). Unlike the 1970 law that had channeled revenue into the General Fund of the U.S. Treasury, the CCCA earmarked all forfeiture profits for law enforcement purposes. State civil forfeiture bills creating similar funding mechanisms followed. In effect, lawmakers created a financial incentive for policing agencies to prioritize anti-drug law enforcement.
Given civil forfeiture’s lucrative ends, police departments have become heavily reliant on it. More than 60% of the 1,400 municipal and county law enforcement agencies surveyed in one study reported that forfeiture profits were a necessary part of their budget, leading the study’s author to conclude that departments were “addicted to the drug war.” In the nation’s capital, police even incorporated future seizures into their operating budget years in advance.
The drug war has unduly harmed racial minorities, and its civil forfeiture provisions are no different. Because of racial profiling, black and Hispanic motorists are disproportionately searched and put at risk of having their cash assets seized, even though black and white drivers are equally likely to be found with narcotics. A 1993 investigation by The Orlando Sentinel revealed that nine of every 10 motorists who were stopped and stripped of their cash by police in Volusia County, Florida, were either black or Hispanic, and three out of four were never charged with a crime. In Philadelphia, where nearly 300 houses are seized annually, African Americans make up 44% of the population but 63% of house seizures and 71% of cash forfeitures unaccompanied by a conviction. Forfeiture is also most likely to affect economically disadvantaged communities: One study found that areas with high income inequality were targeted for civil forfeiture operations, likely because these police departments have limited funding and are inclined to use forfeiture to secure needed revenue. The profile of suspects who have their as- sets seized, a researcher observed, “differ greatly from those of the drug lords, for whom asset forfeiture strategies were designed.”
For-profit policing
Despite its initial aims, civil forfeiture has done little to aid the War on Drugs. Drugs are widely available at cheaper prices and higher potency than when the “war” began, and the most recent drug policy report from the Government Accountability Office, subtitled “Lack of Progress on Achieving National Strategy Goals,” points to its failures. Researchers have quantified civil forfeiture’s impact and found that, while there is small statistical support for the assertion that forfeiture leads to increased crime clearances, these effects are so small as to be immaterial. “The results,” they conclude, “undercut the argument that police retention of forfeiture funds is an essential element in the fight against crime.” In a March 2017 report, the Department of Justice’s (DOJ) Office of the Inspector General found that in 56 of 100 Drug Enforcement Administration forfeiture cases it examined, “there was no discernible connection between the seizure and the advancement of law enforcement efforts.”
What civil forfeiture has achieved, …