On a cool, sunny November day, Mark Brewer – a disabled decorated U.S. Air Force veteran – was driving through the state of Nebraska on his way to Los Angles to visit his uncle. While there, Brewer planned to make a down payment on a house. To that end, he was carrying more than $60,000 in cash, that he had saved during his military service and from disability payments.
After allegedly crossing traffic lanes without signaling, Brewer was stopped by a sheriff’s deputy. During the stop, the deputy performed a criminal background check, which “revealed no major violations.” The deputy then walked around the car with a canine unit, and the dog alerted to the trunk. When he searched the trunk, the deputy found the cash in two backpacks that had a “strong odor of raw marijuana,” but no actual drugs.
Although the deputy found no evidence of criminal wrongdoing and did not even issue Brewer a traffic citation, he still seized the cash and started a legal proceeding to keep it permanently on the suspicion that it was somehow related to criminal activity. Brewer challenged the forfeiture in court but lost, never to see his money again.
Civil forfeiture is a mechanism by which law enforcement can seize and keep property that is purportedly connected to a crime. In contrast to criminal forfeiture, where property is taken only after a criminal conviction, civil forfeiture allows law enforcement to take property from innocent people – like Brewer – who have never been formally charged with a crime, let alone convicted of a crime.
Civil forfeiture is based on a legal fiction in which the government proceeds against the property directly as if the property itself somehow committed a crime. America’s civil forfeiture laws can be traced to 17th-century English maritime law, which permitted courts to obtain jurisdiction over property when it was virtually impossible to obtain jurisdiction over owners – pirates, for example – who had violated the law. Although civil forfeiture remained a relative backwater in American law for much of the nation’s history, its use expanded greatly during the early 1980s with the War on Drugs. Today, unmoored from the practical necessities of enforcing maritime law, civil forfeiture is a popular tool of law enforcement.
Proponents of civil forfeiture argue that it fights crime, both by removing assets required for certain criminal activities – a proposition with almost no empirical support – and by reducing the profitability of crime. But reducing the profitability of crime can itself be profitable. Forfeiture laws at the federal level and in most states award a portion, and sometimes all, of the proceeds from forfeited property to law enforcement agencies for their own use. The laws in some jurisdictions even provide the opportunity for agencies to use forfeiture proceeds to pay salaries, benefits, and overtime, which means law enforcement personnel could derive a direct personal benefit from forfeiture. Allowing agencies to reap financial rewards from forfeiture can distort law enforcement priorities, shifting the focus from fighting crime to generating revenue.
The bad incentives they create are not the only problems with civil forfeiture laws. They also have a low standard of proof required to forfeit property in most states and at the federal level. In a criminal case, the government must prove the accused’s guilt “beyond a reasonable doubt.” This high standard – the highest in the American legal system – is intended to protect against the possibility of convicting innocent people. By contrast, the standard used in civil forfeiture is typically far lower, affording much less protection to owners.
Added to this is that the laws also turn the presumption of innocence on its head for innocent property owners – people whose properties are involved in criminal activities without their knowledge. In a criminal case in the United States, the government must prove its case against the accused, who is presumed innocent. If it cannot, the accused goes free. The burden of proof lies with the government. But in civil forfeiture in most states and at the federal level, an innocent owner bears the burden of proving he did not know about or consent to the illegal use of his property. The owner is, in effect, guilty until proven innocent.
Taken together, these elements of civil forfeiture laws put owners at a significant disadvantage while incentivizing law enforcement to engage in and succeed at forfeiting property. And succeed they have. From 2001 to 2016, the federal government took in more than $35 billion through forfeiture. State and local law enforcement took in hundreds of millions more, although the exact number can never be known since many states do not require agencies to track or report their forfeiture activity.
Mounting evidence suggests two prominent concerns. First, as discussed above, forfeiture laws incentivize the diversion of law enforcement priorities toward revenue-generating activities. Second, because protections for property owners are so poor, forfeiture laws allow law enforcement the option to seize property with no evidence or charges of wrongdoing.
Alda Gentile’s story is illustrative. Gentile, her son, and her grandson were driving home to New York after looking at condos in Florida. In Gentile’s trunk were $11,530 that the Long Island grandmother had taken along in case she wanted to put a down payment on one of the condos. Fourteen miles inside Georgia, state troopers pulled them over for speeding. During the stop, officers asked the family if they had any bombs, drugs, guns, or money in the car. Gentile mentioned the money in her trunk. The troopers called in a drug dog to search the vehicle but found nothing illegal. Nevertheless, after detaining the family for six hours on the side of the road, the police seized the cash and sent them on their way – without charge (other than a speeding citation). Numerous newspaper stories in recent years demonstrate this is not an isolated incident.
Forfeiture proponents will claim these behaviors are within the law – a position that is debatable. But even if legal, they raise ethical issues. The United States is a nation built on the premise that individuals and their rights come first, and government and its powers second, with governmental powers deriving from individual rights, including property rights. Individuals may exercise their rights provided they do not violate the rights of others. And when they do, the purpose of remedies is to ensure that they put things right. Forfeiture in the general sense, then, is a remedy “aimed at securing rights by restoring a pre-violation status quo.”(1) Noted U.S. legal scholar Roger Pilon explains:
“Stated most generally, legitimate or justified remedies are forfeitures: to require a wrongdoer to restore the status quo by returning what his action has taken is to require him to “forfeit” those holdings that are necessary to that end. But while all justified remedies are forfeitures, not all forfeitures are justified remedies. In fact, when not justified, forfeitures are themselves rights violations: they take what belongs to the person required to make the forfeiture.”(2)
Thus, before law enforcement – whose police powers derive from individual rights – can ethically impose upon a person’s rights through seizure and forfeiture, it must have sufficient reason: “Take … without sufficient reason, and another wrong has been committed.”(3)
This, then, is the core ethical problem with civil forfeiture: under cover of – and encouraged by – civil forfeiture laws, those who have done no wrong, either in fact or absent a conviction are punished. As described above, property is seized on nothing more than suspicion. And the vast majority of seized property – upwards of 80 percent at the federal level – is forfeited in civil proceedings devoid of any charges against, let alone convictions of, owners.
Civil forfeiture is not unique to the United States. Canada and the European Union have similar provisions. The United Nations, too, has addressed civil forfeiture under the term “non-conviction based forfeiture” (NCBF). Framing it as a tool for combating anti-corruption, the United Nations Convention against Corruption encourages countries to permit NCBF to recover stolen assets when criminal convictions are truly impossible, such as when the violator is dead, has fled the jurisdiction, is immune from investigation or prosecution, or is essentially too powerful to prosecute.
NCBF is therefore similar in concept and scope to civil forfeiture in the United States when it was still tied to maritime law. Were civil forfeiture still applied as such, we would likely not see the ethical controversies we see today. To the extent other countries and the United Nations facilitate civil forfeiture, they can avoid the ethical problems previously described by limiting its scope to a very narrow application where the property owner has unquestionably committed a crime and securing a conviction against that person is truly impossible.
Dr. Dick Carpenter is a director of strategic research at the Institute for Justice and a professor at the University of Colorado.
- R. Pilon, Can American asset forfeiture law be justified?, 39 N.Y.L. Sch. L. Rev. 311–33 (1994), at 330.