It’s Time to Reform Federal Forfeiture Law

COMMENTARY Economic and Property Rights

It’s Time to Reform Federal Forfeiture Law

May 1st, 2019 3 min read

Commentary By

Jason Snead @JasonWSnead

Senior Policy Analyst

Jordan Richardson

Visiting Fellow

Forfeiture law is incredibly permissive; so much so that authorities can seize property even when there is scant evidence of wrongdoing. harpazo_hope/Getty Images

Key Takeaways

The power to seize property allegedly tied to criminal activity — known as civil forfeiture — has been misused and abused to strip innocent Americans of their homes.

If forfeiture is a nightmare for property owners, it can be a cash cow for law enforcement agencies, which seize billions of dollars each year.

The FAIR Act would change all that. It proposes, among other things, to improve due process protections for property owners by raising the standard of proof.

Margaret Davis, elderly and bedridden, must have been alarmed when drug dealers fleeing the police broke into her home to hide their drugs. But she must have been horrified when she learned that Philadelphia prosecutors wanted to seize her home for their crime. Davis did nothing wrong, but Philadelphia spent 18 months trying to evict her.

Davis’ case is shocking and appalling, but it is not is unique. Many cases have emerged recently in which the power to seize property allegedly tied to criminal activity — known as civil forfeiture — has been misused and abused to strip innocent Americans of their homes, cars, and life’s savings.

In the last five years, 30 states have acted to rein in civil forfeiture. Now, a bipartisan group of lawmakers in the House of Representatives want Congress to follow suit. They recently reintroduced the aptly named FAIR, or Fifth Amendment Integrity Restoration, Act. The bill would overhaul federal civil forfeiture law and bring innocent property owners like Margaret Davis the due process protections they deserve.

Many Americans who care about civil liberties wonder how such unjust seizures are possible at all. Forfeiture law is incredibly permissive; so much so that authorities can seize property even when there is scant evidence of wrongdoing. There is no requirement in federal law or in many states that an owner be charged, much less convicted of a crime, and the legal landscape is so skewed against property owners that they must essentially prove their innocence to get it back.

Winning a forfeiture case can be so difficult that owners are forced to walk away, especially when the cost of an attorney exceeds the value of what was taken. In 2017, Justice Clarence Thomas expressed skepticism about the constitutionality of forfeiture, arguing that such imbalances can make forfeiture appear to be “lawless — a violation of due process.”

But if forfeiture is a nightmare for property owners, it can be a cash cow for law enforcement agencies, which seize billions of dollars each year. These funds do not go back to the U.S. Treasury; they go straight back to federal, state, and local agencies themselves, giving them a direct financial stake in the outcomes of cases.

That creates a powerful perverse incentive to seize property, even in dubious cases. There are well documented instances in which some authorities — favoring cash seizures over making arrests — declined to prosecute or even arrest suspected drug dealers after seizing their cash. It was the money they were really after.

Giving agencies unilateral control over forfeiture funds severely undermines accountability. Just this month, reports revealed that Manhattan District Attorney Cy Vance (pictured) spent $250,000 in forfeiture funds on first-class airfare, posh European hotels, and top-tier dining. His office insists he violated no rules, which may well be true. If so, that only makes clear how lax the rules can be.

The FAIR Act would change all that. It proposes, among other things, to improve due process protections for property owners by raising the standard of proof in federal forfeiture cases, ensuring that owners never have to prove their own innocence. It allows for indigent defense in all cases, and crucially, it ends forfeiture profiteering by requiring that all proceeds be returned to the Treasury.

This is the third time that the FAIR Act has been introduced in the House. Despite support for reform from clear majorities of the public and broad, bipartisan coalitions in Congress, time and again the issue runs into the same roadblock: vigorous resistance from law enforcement groups.

They frequently rebuff reform efforts by asserting that forfeiture is an essential tool to fight crime. But in 2017, the Justice Department’s inspector general found it impossible to prove that is the case because the department does not track and evaluate the data necessary to back up the claim.

The IG examined 100 cases from the DEA, and concluded that so few led to prosecutions that it “creates the appearance, and risks the reality” that seizing cash is the chief goal. It was not always this way. In the 1980s, Congress ramped up civil forfeiture to target the assets of the worst offenders — drug kingpins, criminal organizations, and money launderers. In the decades since, forfeiture has strayed. It is time to return forfeiture to that original purpose. The reforms in the FAIR Act can do that, and will restore accountability and integrity to the practice.

This piece originally appeared in RealClear Politics