A dysfunctional civil-forfeiture system seizes savings, destroys lives

COMMENTARY Crime and Justice

A dysfunctional civil-forfeiture system seizes savings, destroys lives

Jun 24th, 2015 2 min read

Former Senior Policy Analyst

Jason Snead was a senior policy analyst in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

Mandrel Stuart used to be a small-business owner. Unfortunately, he had to close down his Staunton, Virginia restaurant, the Smoking Rooster. Not because of poor sales or harsh food critics, but because one day in 2012, Fairfax police officers turned a routine traffic stop into a chance to seize $17,550 of Mr. Stuart’s hard-earned money.

How? Civil asset-forfeiture laws.

Mr. Stuart’s traffic stop should have ended with a simple citation. Instead, a drug dog was called in to sniff his car. The dog alerted the officers to the presence of narcotics. In the ensuing search, they found more than $17,000 that Mr. Stuart was carrying to purchase supplies for his restaurant — along with a microscopically small amount of marijuana: .01 grams.

Despite a complete lack of corroborating evidence, Fairfax police determined the cash was likely intended to facilitate a drug transaction. They seized every penny. Mr. Stuart hired an attorney, and the government proposed a settlement. If Mr. Stuart dropped his case, they would return half his money.

Mr. Stuart rejected this deal and went to trial. A jury unanimously ordered that his money be returned and his legal fees paid. Unfortunately, the victory came too late to save his restaurant.

Stories like this have galvanized a broad, bipartisan coalition of leading organizations. Groups ranging from the Heritage Foundation to the Institute for Justice and the American Civil Liberties Union have come together for a common purpose: to reform a dysfunctional civil-forfeiture system that undermines our justice system and threatens Americans’ property and civil rights.

Civil forfeiture is a highly contentious legal tool which enables law enforcement officials to seize property they suspect has been used to commit, or is the result of, a crime. Congress ramped up federal forfeiture in the 1980s to accomplish a specific goal: to target the assets of criminal kingpins and the money launderers who helped them hide their illegal profits.

But over time, the reach of asset forfeiture laws has grown tremendously. More than 200 federal crimes and numerous state crimes authorize civil forfeiture, meaning that law enforcement can seize homes, cars and life savings from nearly anyone. Often these seizures are justified by suspicion alone.

Mr. Stuart was among the lucky few who challenge property seizures and win. In civil forfeiture cases, there is no right to counsel or presumption of innocence. To prevail, property owners must, in effect, prove their own innocence. Too poor to afford a lawyer? You have to go it alone.

Not surprisingly, most property seizures go unchallenged.

Law enforcement agencies are generally able to keep the proceeds of their seizures, and spend this money with virtually no oversight. Through the federal equitable sharing program, state and local agencies are incentivized to bypass state laws which protect property owners. These agencies are promised up to 80 percent of the revenues of forfeiture cases transferred to the federal government.

Forfeiture has become a big moneymaker for law enforcement. In 1985, when federal agencies were first allowed to keep these funds, forfeitures totaled only $27 million. In 2012, they totaled $4.3 billion. Since 2001, roughly 62,000 drivers have been subjected to warrantless searches that produced $2.5 billion in forfeited property. Hundreds of police departments and task forces have become dependent on these funds, seizing the equivalent of 20 percent or more of their budgets.

Law enforcement agencies must be adequately funded, but that funding should come from legislatures, not unaccountable self-financing schemes.

Civil forfeiture has clearly exceeded its original bounds. Heritage has developed a series of common sense measures to reform state and federal forfeiture laws. Law enforcement should be barred from keeping the proceeds of their seizures, and the equitable sharing program should be abolished. Property owners should be guaranteed an attorney, and the presumption of innocence should be honored.

Numerous states have passed sweeping reforms of their forfeiture statutes, and many others are actively considering proposals. Clearly, the time for civil forfeiture reform has come.

 - Jason Snead, co-author of “Arresting Your Property: How Civil Asset Forfeiture Turns Police Into Profiteers,” is a researcher in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

Originally appeared in The Washington Times