Civil asset forfeiture involves the government taking assets allegedly used in or the proceeds of criminal activity. The practice has long angered libertarians and produced many injustices. A reform bill has been introduced in the state legislature this session.
First a little history. Civil asset forfeiture in the U.S. dates to the early 1800s, when our nation battled the Barbary pirates and privateers. Privateers were privately funded, equipped, and staffed ships commissioned by nations to raid enemy commercial shipping during conflict. Investors funded privateers in exchange for the captured bounty.
Property belonging to a pirate might be captured without the owner (technically the foreign nation for privateers) being apprehended. The government brought a civil case to seize the property, which the U.S. Supreme Court affirmed in an 1827 decision. This decision is notable because John Marshall was then Chief Justice. Justice Marshall took the Constitution’s strict limits on government seriously, having innovated judicial review to strike down unconstitutional government actions. The Marshall Court’s ruling suggests that forfeiture is consistent with even limited government.
The Federal and state governments revived and expanded civil forfeiture in the 1980s to prosecute the War on Drugs. Modern forfeiture has two notable features. First, the burden of proof is lower than the familiar guilt beyond a reasonable doubt criminal standard, and civil forfeiture does not require a conviction or even the filing of criminal charges. Second, laws passed in the 1980s allowed the Department of Justice and police departments to keep seized assets.
Not surprisingly, law enforcement dramatically expanded its use of civil forfeiture. And troubling stories of abuse soon began to emerge. In one notorious instance, police in Tenaha, Texas, stopped out-of-town motorists, and if they were carrying cash, threatened them with money laundering charges if they did not agree to forfeiture. At least 140 people were shaken down over a two-year span. Criminal charges were never filed against the motorists, who were disproportionately African-American.
A new report from the Alabama Appleseed and Southern Poverty Law Centers, “Forfeiting Your Rights,” offers details on civil forfeiture in Alabama. The researchers meticulously scoured court records from 2015, as reporting of civil asset forfeiture is not required. In 25 percent of cases, the accused faced no criminal charges. Half of the seizures involved less than $1,400, hardly the riches of drug kingpins. The state “won” half of the cases because the accused made no attempt to defend his or her property. Even if the accused could afford a lawyer, legal fees could easily exceed the amount at stake.
One might want to blame all this on greedy police departments and prosecutors. News stories hint at a different dynamic. A first seizure might have allowed the purchase of some valuable equipment which local government could not afford. Then seizures might have protected the police budget when local tax revenues fell. Pretty soon, local government would begin counting on the revenue, creating pressure for continued seizures, especially small seizures likely to go unchallenged.
We all probably deserve some blame. We do not like to pay taxes, yet still want the police to have the resources they need. Asset forfeiture allows this; all we have to do is tell ourselves that only criminals face forfeiture and ignore evidence to the contrary. The “Forfeiting Your Rights” report demonstrates the cost of funding police through asset seizures in Alabama.
We could alternatively rely on criminal forfeiture, which requires a criminal conviction. As the Marshall Court recognized in 1827, civil forfeiture is appropriate only when the accused cannot be prosecuted. That is not true in the vast majority of cases today. Proving criminals’ guilt beyond a reasonable doubt in a trial before a jury of one’s peers has proved crucial in making government serve the governed, not the rulers. We discard this wisdom at our own peril.
Nobody likes paying taxes. Proponents of limited government, however, should be willing to fund the tasks we ask of government. We should adequately fund law enforcement through taxes and end the disgrace of civil asset forfeiture.
Daniel Sutter is the Charles G. Koch Professor of Economics with the Manuel H. Johnson Center for Political Economy at Troy University.
