Civil Asset Forfeiture
SUMMARY
Civil asset forfeiture (CAF) is a legal tool of the government to seize property that is connected to criminal activity. Unlike criminal asset forfeiture which is part of the punishment following a criminal conviction, in civil asset forfeiture a legal action is brought against the property, not against the owner of the property. A feature of this proceeding against the property is that the owner — who may lose extremely valuable property like a home, a vehicle, or life savings — has no guaranteed right to counsel. As a civil matter, there is a lower burden of proof for the government to prevail, often the standard of "preponderance of the evidence" which is much lower than "proof beyond a reasonable doubt" required to convict a person of a crime. The result is that persons may lose property that the government alleges was connected to a crime without the protections that exist if the person had been charged with committing the crime the property is alleged to be connected to. The connection of the property to the crime is that it was used in the commission of a crime or is the proceeds of a crime.
The use of civil asset forfeiture proceedings has mushroomed since the mid-1980s, and forfeitures totaled more than $4 billion in 2014. One reason for this increase is that the seized property typically does not become government property in the usual sense of going into the Treasury, like other receipts, and distributed to government programs as allocated by Congress or a legislature. Forfeited property commonly goes directly to the seizing agency. This increase in civil asset forfeiture was considered an important drug enforcement strategy in the 1980s because it can take the property and money used to facilitate drug trafficking, and especially the profits from drug crimes. There is no evidence that as a strategy it has helped reduce the supply of drugs in the country or that it has deterred potential drug offenders. (As a tool to punish drug offenders, it should be reserved to cases in which the owner is convicted of the offense.) However, the ease with which property can be acquired, and that it is then retained by the law enforcement agencies that make the seizures, has tended to encourage agencies to pursue cases in which it may be alleged that some property is drug related, instead of pursuing investigations of crimes with no civil asset forfeiture pay-off, such as violent crime. The widespread use of CAF has distorted police priorities. And outrageously, the low burden of proof and lack of procedural protections has resulted in many cases in which innocent persons lost their property.
HISTORY
During the colonial era, customs officials used English forfeiture laws to seize smuggled property.[1] The U.S. passed its first CAF law in 1789 so that the Treasury Department could seize the ships and cargo suspected to be involved in smuggling and evading customs duties without having to prosecute the ship owners, who might be thousands of miles away.[2] The government’s use of CAF rose during alcohol prohibition, when Treasury agents enforcing the alcohol laws seized the vehicles and equipment of bootleggers.[3] The early narcotics laws were tax laws enforced by the Treasury Department and included CAF procedures, and CAF was carried forward in the Controlled Substances Act of 1970. Use of the procedure ballooned with the expansion of America’s War on Drugs in the 1980s. Sections 309 and 318 of the Comprehensive Forfeiture Act of 1984 (P.L. 98-473, 98 STAT. 2040 et seq.) created an “equitable sharing program” for DEA and Customs forfeitures respectively. In this program, state and local law enforcement agencies that participate in federal anti-drug task forces can obtain up to 80% of the value of property seized in their joint operations. Under this law, local law enforcement agencies had a means to directly benefit from every asset forfeiture, instead of the forfeitures helping to increase the annual receipts of the city, county or state they served.[4]
PROBLEMS WITH Civil asset forfeiture
Under civil asset forfeiture procedures, assets are easy for agencies to seize and difficult for property owners to recover. The burden of proof needed for civil asset forfeiture is “preponderance of the evidence,” a lower standard than “guilty beyond a reasonable doubt.” The process to recover one’s property is long, complicated, and costly. Many people cannot afford a lawyer, especially to recover a small amount of cash. Michael Sallah, Robert O'Harrow Jr., Steven Rich, Gabe Silverman wrote in The Washington Post that out of 62,000 cases of cash forfeiture in the period 2001-2014, only one-sixth had been challenged in court.[5]
Law enforcement agencies can use CAF to supplement their budgets, even if state and local governments have to shrink agency funding when tax revenues decline. Many police departments receive up to 20 percent of their total annual budget from CAF proceeds [6]. This gives them a powerful incentive to focus on drug cases that generate CAF revenue, unlike predatory crimes such as rape, robbery, car theft, burglary and assault. In 2014, federal asset forfeiture receipts alone totaled roughly $3.9 billion, equal to the total amount that property owners — ordinary citizens and small and large corporations — lost due to property crime (such losses may have been partially covered by insurance, but typically not at full value).[7] Clearance rates for property crimes are very low.
A very different and even more disturbing problem is that innocent people have lost their assets to civil asset forfeiture in many cases. The report on CAF by the Washington Post, Stop and Seize, found 61,998 cash seizures had been made through the federal Equitable Sharing Program without search warrants or indictments since September 11, 2001.[8] In one study that reviewed over 500 cases, in 80% of the civil forfeiture cases studied, no one was charged with any crime.[9]
In some cases, CAF revenue has bred corruption. In Hunt County, Texas, officers gave themselves personal bonuses of up to $26,000 a year from forfeiture funds.[10] Sarah Stillman, wrote in The New Yorker that in Tenaha, Texas, roadside seizures alone funded a long list of wholly inappropriate expenses such as Halloween costumes, decorations, credit card late fees, festival supplies, a popcorn machine, a $1,000 donation to a Baptist congregation (which was reported to be “important” to the District Attorney) and a $10,000 personal bonus for the Deputy City Marshall.[11]
Controversial law enforcement strategies are justified by the financial rewards they can produce using CAF. A study on CAF published in The Arizona Law Review examined the police tactic called the “reverse sting.” In a reverse sting, an undercover officer attempts to sell drugs. Often the undercover officer takes the initiative rather than simply waiting to be approached by a buyer. In a reverse sting, since the undercover officer did not purchase the drugs being sold and has no need to make a profit or cover expenses, the officer can offer to sell drugs at prices substantially below the local market price, offering a “bargain” too good to pass up. Once the target agrees to the officer’s offer, the officer not only seizes the buyer’s cash, but often seizes the buyer’s vehicle. If a cell phone or email had been used to communicate, the phone and computers are seized as well. If the officer is able to get the buyer to make the purchase in their home, the home can be seized. One officer who had conducted reverse stings stated that every agency and department he had worked with preferred reverse stings over regular stings because reverse stings allowed them to seize money instead of drugs.[12]
RATIONALE FOR CAF
Federal civil asset forfeiture has three principal aims: punishing and deterring criminal activity, encouraging state and local law enforcement cooperation with federal agencies, and funding law enforcement.[13] The latter two aims have been successfully achieved, though they have distorted local law enforcement priorities in favor of drug law enforcement. However, CAF does not deter or significantly punish drug trafficking. While the U.S. market for illegal drugs exceeded $100 billion per year, federal CAF receipts totaled about $3.9 billion in 2014.[14] A seizure rate of slightly less than four percent of drug revenue is comparable to low sales tax. For the illegal drug industry at large, such a minor charge in contrast to markups that can be realized on the importation of drugs (1300% on cocaine and 2300% on heroin)[14A] cannot be considered a plausible deterrent or punishment for illegal drug traffickers.
PREVIOUS CAF REFORM EFFORTS
There is interest in reform at both state and federal levels. Minnesota reformed their civil asset policies in 2014 which now requires a criminal conviction before property can be forfeited and raises the standard of proof to fall on the government instead of the defendant. [15] New Mexico reformed its civil asset forfeiture laws in April 2015 and banned seizing property without a conviction. Montana also banned forfeiting property without a conviction in 2015 and raised the standard of proof to clear and convincing evidence. [16] Florida enacted reforms of its state civil asset forfeiture policies in 2016. [17]
Representative Henry Hyde (R-IL), then-Chair of the House Judiciary Committee, introduced the Civil Asset Forfeiture Reform Act (CAFRA) in 1999. [18] In 2000 CAFRA passed and was signed into law by President Clinton. CAFRA was a compromise. It did not address forfeitures under the Customs laws. It expanded the government’s power to seek civil asset forfeiture in connection with a substantially expanded number of criminal offenses. Significantly, it allowed prosecutors to share information obtained before a grand jury (which normally must be kept secret except when used in a criminal trial) with their counterparts seeking civil asset forfeiture.
For those challenging forfeitures, there were some protections. For example it raised the government’s burden of proof to the standard of preponderance of evidence. It narrowly expanded a right to counsel — only for property owners who are already criminal defendants with appointed counsel in connected criminal cases. It allowed property owners to maintain temporary custody of property in cases of hardship. [19]
CAF REFORM EFFORTS PENDING IN THE 116TH CONGRESS
On May 17, 2019, U.S. Rep. F. James Sensenbrenner (R-WI) and a bipartisan group of cosponsors introduced H.R. 2835, the “Deterring Undue Enforcement by Protecting Rights Of Citizens from Excessive Searches and Seizures Act of 2019” or DUEPROCESS Act of 2019, to expand protection of property owners facing civil asset forfeiture. The right to counsel would no longer depend upon the property owner facing related criminal charges. The burden of proof is raised from “preponderance of the evidence” to “clear and convincing evidence.” The time window for property owners to respond to a notice and seek a hearing is expanded. The government must notify property owners more quickly if it seizes property. The protection against forfeitures disproportionate to the alleged conduct is expanded, and other protections are provided.
CAF and cjpf
As Counsel to the Judiciary Committee of the U.S. House of Representatives, CJPF Executive Director Eric E. Sterling was involved in creating civil asset forfeiture laws, yet he now advocates for CAF reform. Some of his comments can be found in South Coast Today, Schaffer Library of Drug Policy, and Newsweek. He was a co-founder and former Board member of Forfeiture Endangers American Rights (FEAR), a nonprofit organization that assists forfeiture victims with legal aid and educates the public about civil asset forfeiture.
CAF Resources
Other organizations have done considerable work on civil asset forfeiture:
American Civil Liberties Union
Significant articles:
The New Yorker, Sarah Stillman
Footnotes
[1] Mellor, Chip. (2011). “Civil Forfeiture Laws And The Continued Assault On Private Property.” Forbes, 8 June. Accessed 10 Dec 2015 at http://www.forbes.com/2011/06/08/property-civil-forfeiture.html
[2] Mellor, William, Scott G. Bullock, Darpana M. Sheth and Robert P. Frommer. (2013). Institute for Justice Brief of Amicus Curiae, State of Florida v. Clayton Harris. Accessed 10 Dec 2015 at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-817_resp_amcu_ij.pdf
[3] Finder, Alan. (1999). “Drive Drunk, Lose the Car? Principle Faces a Test.” The New York Times, 24 Feb. Accessed 10 Dec 2015 at http://www.nytimes.com/1999/02/24/nyregion/drive-drunk-lose-the-car-principle-faces-a-test.html
[4] Emshwiller, John R. and Gary Fields. (2011). “Federal Asset Seizures Rise, Netting Innocent With Guilty.” Wall Street Journal, 22 Aug. Accessed 10 Dec 2015 at http://www.wsj.com/news/articles/SB10001424053111903480904576512253265073870
DOJ. (2015). “The Fund.” The United States Department of Justice Asset Forfeiture Program. 16 March. Accessed 10 Dec 2015 at http://www.justice.gov/afp/fund
[5] Michael Sallah, Robert O'Harrow Jr., Steven Rich, Gabe Silverman, “Stop and Seize,” The Washington Post, Sept. 6, 2014, https://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/?utm_term=.9112c1a66060, accessed 04 Aug. 2019.
[6] O’Harrow, Robert, Jr., Steven Rich and Shelly Tan. (2014). “Asset Seizures Fuel Police Spending.” The Washington Post, 11 Oct, accessed 06 Aug. 2019 at http://www.washingtonpost.com/sf/investigative/2014/10/11/asset-seizures-fuel-police-spending/
[7] Armstrong, Martin. (2015). “Police Civil Asset Forfeitures Exceed All Burglaries in 2014.” Armstrong Economics, 17 Nov. Accessed 10 Dec 2015 at http://www.armstrongeconomics.com/archives/39102
[8] Sallah, Michael, Robert O'Harrow Jr., Steven Rich and Gabe Silverman. (2014). “Stop and Seize.” The Washington Post, 6 Sept. Accessed 10 Dec. 2015 at http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/
[9] Dunn, Kyla. (2000). “Reining in Forfeiture: Common Sense Reform in the War on Drugs.” PBS Frontline. Accessed 10 Dec 2015 at http://www.pbs.org/wgbh/pages/frontline/shows/drugs/special/forfeiture.html
[10] Stillman, Sarah. (2013). “Taken.” The New Yorker, 12 Aug. 2013. Accessed 10 Dec 2015 at http://www.newyorker.com/magazine/2013/08/12/taken
[11] Stillman, Sarah. (2013). “Taken.” The New Yorker, 12 Aug. 2013. Accessed 06 Aug. 2019 at http://www.newyorker.com/magazine/2013/08/12/taken
[12] Carpenter, Dick M. II, Lisa Knepper, Angela C. Eickson and Jennifer McDonald. (2015). “Policing for Profit: The Abuse for Civil Asset Forfeiture.” Second Edition. Institute for Justice, Nov. 15. Accessed 10 Dec 2015 at http://ij.org/report/policing-for-profit/executive-summary/
Moores, Eric. (2009). “Reforming the Civil Asset Forfeiture Reform Act.” Arizona Law Review 51(3): 777. Accessed 10 Dec 2015 at http://www.arizonalawreview.org/pdf/51-3/51arizlrev777.pdf#sthash.OrlyTTLD.dpuf
[13] DOJ. (2007). “Asset Forfeiture.” United States Attorneys’ Bulletin Vol 55. No 6. Nov. Accessed 10 Dec. 2015 at http://www.justice.gov/usao/eousa/foia_reading_room/usab5506.pdf
[14] Carpenter, Dick M. II, Lisa Knepper, Angela C. Eickson and Jennifer McDonald. (2015). “Policing for Profit: The Abuse for Civil Asset Forfeiture.” Second Edition. Institute for Justice, Nov. 15. Accessed 10 Dec 2015 at http://ij.org/report/policing-for-profit/executive-summary/
DOJ. (2015). “Annual Statistical Reports.” Department of Justice Office of the United States Attorneys, Mar 23. Accessed 10 Dec 2015 at http://www.justice.gov/usao/resources/annual-statistical-reports
The United States Attorneys’ Financial Statement for fiscal year 2014 reported civil asset forfeiture cases totaling $3.87 billion. The second edition of Policing for Profit by the Institute for Justice reported state asset forfeiture numbers for 34 states/DC including large states such as California, Texas, and New York. This number totaled to $337.9 million. These two numbers were summed together to equal $4.2 billion. Since data from 16 states are missing this $4.2 billion is rounded up to $4.5 billion. Some flaws with this estimation include: (1) some of the individual state data stated civil asset forfeiture proceeds separately, while the majority of state data include both criminal and civil forfeiture proceeds, (2) all data reported are the most recent data available which consists of mostly 2014 and 2013, but one state dates as far back to 2011, (3) based on the label of the data presented by Institute for Justice, the definition of forfeiture proceeds vary by state.
Kilmer, Beau; Everingham, Susan S.; Caulkina, Jonathan P.; Midgette, Gregory; Licardo Pacula, Rosalie; Reuter Peter H.; Burns, Rachel M.; Han, Bing; Lundberg, Russell. (2014). “How Big is the U.S. Market for Illegal Drugs?” Rand Corporation, 2014. Accessed 10 Dec. 2015 at http://www.rand.org/pubs/research_briefs/RB9770.html
[14A] Sean Ross, “The Economics of Illicit Drug Trafficking,” Sep. 7, 2016, Investopedia.com. https://www.investopedia.com/articles/personal-finance/080116/economics-illicit-drug-trafficking.asp Accessed 06 Aug. 2019.
[15] Minnesota State Legislature. (2014). “A bill for an act
relating to criminal justice; modifying judicial forfeiture provisions;amending
Minnesota Statutes 2012.” Minnesota State Legislature, 12 May. Accessed 15 Dec 2015 at https://www.revisor.mn.gov/bills/text.php?number=SF874&version=2&session=ls88&session_year=2013&session_number=0
[16] Perry, Mitch. (2015). “Joe Negron Signs on to Jeff Brandes Civil Asset Forfeiture Reform Bill.” Florida Politics, 12 Dec. 2015 Accessed 15 Dec. 2015 at http://floridapolitics.com/archives/196572-joe-negron-signs-on-to-jeff-brandes-civil-asset-forfeiture-reform-bill
[17] Nick Wing, “Florida Just Made It Harder For Police To Take People’s Stuff,” HuffPost.com, 01 April 2016, https://www.huffpost.com/entry/florida-civil-asset-forfeiture_n_56fe9d7ce4b0a06d5805896d Accessed 06 August 2019
[18] Fix Forfeiture. (2015). “The Issue: State Level Reform.” Fix Forfeiture website. Accessed 15 Dec 2015 at http://www.fixforfeiture.org/the-issue-state-level-reform/
[19] Wallace, Paul Starett Jr. (2000). “Civil Asset Forfeiture Reform Act of 2000: Overview of Public Law 106-185.” Congressional Research Service, 2 June. Accessed 06 Aug 2019 at http://congressionalresearch.com/RL30576/document.php