Could the practice of civil asset forfeiture be abolished?

Law enforcement agencies across the United States have long upheld a practice known as civil asset forfeiture (or civil judicial forfeiture) as an important tool for combating crime. This practice for seizing property and money used in a crime, is designed to help cripple criminal organizations and fund law enforcement initiatives.

At a moment when limiting police authority is being hotly debated, the practice of civil asset forfeiture makes for an understandable target of reform. It’s one of those rare topics that unifies both sides of the political spectrum, with conservatives and liberals alike opposing the practice.

But efforts to limit or abolish it have made little progress at the federal level.

What is civil asset forfeiture?

Civil asset forfeiture is a means by which law enforcement can seize products, property or money used or acquired in a criminal enterprise. In American law, the practice goes back to the founding of the country, though the largest expansions to the laws have occurred within the last 50 years.

Prior to the 1970s, civil asset forfeiture was mostly used to seize items that had been used in a crime, such as automobiles used to transport illegal alcohol during Prohibition.

In 1978, Congress voted for the first time to allow money to be seized by law enforcement as a means of combating the illegal drug trade. In 1984, the law was expanded once again to include property.

While the so-called “war on drugs” of the 1980s helped fuel the expansion of civil forfeiture laws, these laws have been expanded post-9/11 as part of the “war on terror.”

In 1984, the Department of Justice Assets Forfeiture Fund (AFF) was created by Congress to oversee the use of seized property in DOJ investigations.

In 1992, Congress created a separate department within the US Treasury Department to oversee the newly codified Treasury Forfeiture Fund (TFF). This fund, similar to the AFF, is made up of money and other items seized through cases involving the Treasury Department. The fund is administered by the Treasury Executive Office for Asset Forfeiture (TEOAF).

Both funds account for billions of dollars in seized property. In 2018 alone, the TEOAF reported that the TFF brought in “$416 million in revenue from forfeiture deposits, reverse asset sharing, and interest.”

President Donald Trump has said that he wants to use some of that money to help build a border wall between the US and Mexico.

Almost every state has its own civil forfeiture laws, with local law enforcement agencies frequently being the recipients of all (or nearly all) of the proceeds that come from the seized goods.

The controversy around civil asset forfeiture

Civil forfeiture laws exist to allow law enforcement to undermine criminal enterprises and put money gained through illegal activities to work fighting crime. That is, at least, the stated purpose.

Critics argue that the laws are too easily abused by police agencies who seize valuable property and enrich their departments with those funds, a practice they call “policing for profit.”

Throughout the 2010s, media outlets like The New Yorker and programs like HBO’s Last Week Tonight published extensive pieces on the practice, decrying its abuses and relaying stories of innocent citizens whose property was seized because they had allegedly committed a crime. Even when those people were found not guilty of any crime, their property was not returned to them.

This is because the process for retrieving property once it has been designated as potentially part of a crime can be incredibly difficult and drawn out, even if no crime was ever committed. Or, as a Forbes article from 2011 put it, “your property is guilty until you prove it innocent.”

Opposition to civil asset forfeiture

In a period of considerable partisan division in the US, opposition to civil asset forfeiture is a decidedly unifying topic.

The Heritage Foundation, a conservative think tank, has come out against the practice, saying it “does not help police fight crime” and warning that the practice appears to be used more during periods of higher unemployment. In other words, the practice is most abused when citizens are most financially vulnerable.

Citing a study by the Institute for Justice, the Heritage Foundation argues that the current laws must be reformed, because “no one in America should lose their property without being convicted of a crime.”

Similarly, the American Civil Liberties Union (ACLU) has criticized the “deeply flawed federal and state laws” that have allowed abuses. The ACLU has called for the system to be reformed because, they claim, “many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting.”

Reforming civil asset forfeiture laws

Calls for reform have been heeded by politicians on both sides of the aisle.

In the US House of Representatives, Democratic Representative Jamie Raskin and Republican Representative Tim Walberg have introduced the Fifth Amendment Integrity Restoration (FAIR) Act.

The FAIR Act would, among other reforms, require greater proof of criminal activity for seizing property and stop funding the AFF. The act has been introduced into the House but has yet to make it through both chambers of Congress.

Representative Jim Sensenbrenner, another Republican member of the House, has introduced his own bill aimed at reforming civil forfeiture laws: the Deterring Undue Enforcement by Protecting Rights Of Citizens from Excessive Searches and Seizures (DUE PROCESS) Act of 2019. It has yet to be voted on in the House.

It is unclear when, if ever, the Senate would consider either act.On the state level, a majority of legislatures have reformed or abolished their civil forfeiture laws in the past decade. However, the push to reform the practice, or end it altogether, is ongoing at both the state and the federal level.

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