by R Tamara de Silva
January 26, 2017
Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
`No, no!’ said the Queen. `Sentence first–verdict afterwards.’
`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’
`Hold your tongue!’ said the Queen, turning purple.
`I won’t!’ said Alice.
`Off with her head!’ the Queen shouted at the top of her voice.
Alice’s Adventures in Wonderland by Lewis Carroll
Few things in the practice of law have struck me as more similar in practice to the Queen’s declaration in Alice in Wonderland than the often seemingly surreal practice of civil forfeiture. Not only when in instances that it goes awry but just even as a theory as it sits written into federal and state statutes -resting on the books yet so very much at odds even in written theory with the scant enumerated rights and protections that are our constitutional safeguards against tyranny. It was anticipated by some that the recent confirmation hearings of the new United States Attorney General would draw attention to the practice of civil forfeiture. Mr. Sessions had previously defended the practice of civil forfeiture as it was used in Alabama in his tenure as a prosecutor there.
The practice of civil forfeiture provides that federal and state statutes allow the government to seize private property when that property is used in prohibited ways. Like so much in the law, the room for disaster lies in the application of what is subject to interpretation and by whom it is that is doing the interpreting.
Civil forfeiture originated in the laws of admiralty when ships carrying contraband were subject to seizure. The cargo carried would be seized whether on port or on the high seas often of necessity outside of the presence of the ship’s owners who may have been in distant countries. Forfeiture was later used in the area of border crossing during customs examinations starting in England in the 1700s and through the Act of Frauds.
It became used here domestically with the passage of the Comprehensive Crime Control Act in 1984 and the War on Drugs in which Congress created the Department of Justice’s Asset Forfeiture Fund. The Fund exists to accept and manage proceeds from federal forfeiture actions. Federal agencies have access to the money in the Fund not only to compensate crime victims and communities afflicted by crime but also to bankroll their own activities and operations. Once the federal government began to pursue forfeiture aggressively, states and localities followed suit. Forfeiture practice soon expanded from drug crimes to a variety of other illegal activities, including organized crime, financial fraud, child pornography, public corruption, and terrorism.
The law recognizes two types of asset forfeiture – civil and criminal. Both are creations of statute. Criminal asset forfeiture typically occurs as part of a criminal court case, in which a defendant’s guilt must be established beyond a reasonable doubt before his property can be taken. Civil forfeiture, however, proceeds under the legal fiction that it is an action against the property itself, not the owner-in rem. Thus, the owner need not even be charged with a crime for the property to be subject to seizure.
Underlying the use of civil forfeiture is the idea in the law that property can be guilty, in rem without the owner of the property actually being guilty. What this means is that assets and rights to property can be seized without proving that the asset owner actually did anything wrong to justify the seizure. There is no pre-seizure due process hearing. Mere suspicion, without any due process guaranteed to the owner-arguably the lowest legal standard in the law, as opposed to a criminal conviction, is sufficient for seizing. It is practically not possible for the majority of innocent property owners to regain control of the their assets or fight civil forfeiture because it is costly and procedurally grueling. The process of even trying to recover seized property was made more onerous in 2000 by the passage of the Civil Asset Forfeiture Reform Act of 2000, which imposed strict filing deadlines that if not met by property owners, resulted in a complete and utter forfeiture of what little judicial process there was.
A civil asset forfeiture proceeding begins when a law enforcement or other government agency takes possession of property it claims is associated with criminal activity – property that is either used to facilitate a crime or acquired with the proceeds of crime. Virtually any kind of property is subject to forfeiture, including:
- Real property
- Professional licenses
- Musical instruments
The government needs only to establish probable cause (among the lowest of legal thresholds) to justify the seizure. After that, the property owner must be given notice and an opportunity to be heard. But the burden rests with the owner to file an action to reclaim the property. The owner must show he or she is innocent of any criminal activity to prevail, in effect the owner must prove a negative and the deck is stacked in law enforcement’s favor.
To begin with, when asset forfeiture proceeds as a civil, rather than a criminal, matter, property owners lack the legal protections afforded to criminal defendants. Property owners have no right to counsel. But without a lawyer experienced in civil forfeiture litigation, they are at a severe disadvantage. The deadlines to file a claim are tight, and if an owner misses a deadline, he or she can face a summary declaration of forfeiture.
Also, as noted above, the government’s burden of proof is significantly weaker in a civil action than a criminal one. Moreover, depending on whether the confiscating agency is federal or state, different roadblocks exist for claimants. Illinois is a prime example of a system set up to discourage people from trying to reclaim their property. To challenge a seizure, a property owner must first post a bond of the greater of $100 or 10 percent of the value of the property in issue (with certain exceptions). If the claim is successful, the owner still loses 10 percent of the amount of the bond and has no way to recover any attorneys’ fees and costs incurred. If the claim is not successful, the claimant loses the entire bond and must pay the full costs of the proceeding, including the government’s legal costs.
A house, car, boat or cash can be seized if it is believed to be purchased or enjoyed as a result of ill gotten gains such as dealing in narcotics or perhaps even in the case of off-shore tax avoidance schemes…although it is less used in the latter context. Civil Forfeiture was thought to take the money incentive out of crime….but it has as many would argue created a perverse money incentive on the part of law enforcement agencies. Law enforcement agencies get to use the seized and then forfeited or unclaimed property for their own coffers…in what appears to be a largely unchecked process. So in effect, it is the law enforcement agencies (ATF, DEA, IRS, FBI, ICE and CBP), who have budgetary and self-funding interests in pursuing civil forfeitures.
In a forfeiture hearing, it is also a member of the seizing agency and not an impartial non-stakeholder who acts as the judge…it is more akin to a conflicted party acting as the judge, jury and executioner…the Queen in Alice’s adventure made manifest.
We tend to take for granted the surety of our rights of property ownership-to our homes, our cars, our bank accounts. All these things belong to us, and our government cannot just swoop in and take them from us. And yet, that is exactly what happened in the following instances, among so many others:
- At Cincinnati/Northern Kentucky Airport, law enforcement agents stopped a college student, claiming that his luggage smelled of marijuana. Although a search turned up no contraband and the student had violated no laws, the agents seized $11,000 in cash that he was carrying – money he had legally saved up for more than five years.
- In Philadelphia, the state seized a man’s home because his son was arrested for selling $40 worth of drugs outside the house. For the man and his wife to regain possession of their home, they were required to appear in court no fewer than nine times and agree to a variety of conditions, including changing the locks and banning their son from the premises.
- In North Carolina, the IRS drained a convenience store owner’s bank account of $107,000, alleging he had been structuring bank deposits to avoid triggering federal reporting requirements. The owner had not been charged with a crime, and in fact had been simply following a bank teller’s advice that smaller deposits generated less paperwork.
- In Tewksbury, Massachusetts, the federal government attempted to seize a family-owned motel where some of the guests had committed drug crimes. The owners were not involved in the crimes and had no knowledge of them when they occurred.
The FBI argues that the use of civil forfeiture enables them to achieve such goals as disrupting and destroying criminal and terrorist organizations, punishing criminals, compensating crime victims, and protecting communities. While the theory sounds noble, the practice is different.
The Frequency of Civil Asset Forfeiture
In its report Policing for Profit: The Abuse of Civil Asset Forfeiture (2nd Ed.), the Institute for Justice (IJ) notes that at the federal level, deposits to the DOJ’s Asset Forfeiture Fund have increased from $93.7 million in 1986 to $4.5 billion in 2014, an increase of 4,667 percent. Figures for state forfeitures are harder to come by, as most states do not require public reporting of data regarding forfeiture activity. However, according to the IJ, in 2012, Illinois state and local agencies took in almost $20 million in forfeitures, ranking behind only Texas and Arizona among the states from which information can be found. And only a small percentage of the amounts seized is ever paid out to crime victims or communities. The bulk of it is retained for law enforcement use.
It is important to keep in mind that one particularly large case can skew the overall picture of forfeiture activity. For example, in 2014, $1.7 billion dollars flowed into the Asset Forfeiture Fund from a judgment against investment fraudster Bernie Madoff alone. But for every Madoff, there are thousands of ordinary citizens facing forfeiture of much smaller amounts. The median forfeiture case in Illinois is worth $530. In Minnesota, the amount is $451. Given the low amount of the typical forfeiture case, is law enforcement really targeting big criminal syndicates or just regular folks without the means to fight back?
In fact, the government tends to win the majority of civil asset forfeiture cases by default. That is, the owners simply do not challenge the seizure. According to the IJ, the lower the value of the property taken, the less likely the owner is to attempt to reclaim it. When an owner fails to challenge a seizure, the result is what is called an administrative forfeiture. This means that law enforcement is never required to justify its actions to anyone. Ownership of the property is transferred essentially through paperwork, with no judicial oversight and no review of the confiscating agency’s determination that forfeiture is appropriate.
What’s Wrong with Civil Asset Forfeiture
Civil asset forfeiture is a due process snake pit, rife with conflicts of interest and possibilities for the abuse of process. As we have already considered, law enforcement is allowed to seize property from citizens who have committed no crimes, with the burden placed on the innocent owner to accomplish its return. Forfeiture thus unfairly punishes people who have done nothing wrong. Moreover, civil asset forfeiture relieves the government of the burdens it faces in criminal court (i.e., having to prove guilt beyond a reasonable doubt) while depriving citizens of the constitutional protections they enjoy in criminal proceedings (i.e., the right to a lawyer).
But perhaps the single biggest problem with civil asset forfeiture is the fact that it offers law enforcement agencies a financial stake in the proceedings, creating the incentive for the government to pursue profit over the impartial administration of justice. And because law enforcement agencies have access to funds acquired through forfeiture for their own use, they have the ability to “self-fund” operations outside the control of democratically-elected representatives who would otherwise control their budgets.
When Americans are polled about civil asset forfeiture, the great majority of them oppose it. In response, several states have recently begun to pursue reforming the procedure. Back in 2000, the U.S. Congress passed the Civil Asset Forfeiture Reform Act,  which among other things created the “innocent owner” defense to forfeiture, allowing an owner to reclaim his or her property if it can be proven by a preponderance of evidence that the owner either did not know about the conduct giving rise to the forfeiture, or that if she or she did know, all reasonable steps were taken to stop the criminal activity. But these reforms fail to tackle the fundamental conflict of interest created by law enforcement’s financial stake in forfeiture funds. Nor do they address the basic injustice inherent in a procedure that allows the government to confiscate property from law-abiding citizens based on nothing more than that property’s relationship, however tangential, to someone else’s alleged criminal activity. Perhaps the only real way to reform civil asset forfeiture, then, is to eliminate it altogether.
Civil Liberties Aside…
The most powerful argument against civil forfeiture however, is that is constitutes a wholesale assault on the very few constitutional safeguards we have been given and that form the bedrock of what freedom has come to mean to us as Americans. Our law guarantees the right to be held innocent until proven guilty. The right to have guilt proven beyond reasonable doubt in matters where we may be held to have violated the criminal law. The right to be free from unreasonable seizure and to be guaranteed due process of law. We are also guaranteed the right to be free of excessive and disproportionate punishment. In other words our rights under the Fourth, Fifth, Fourteenth and Eighth Amendments stand wholly at odds against the practice of civil forfeiture.
Civil forfeiture offers no due process when on the word of an informant or mere suspicion of wrong-doing, we can be subjected to an unreasonable seizure and punishment that is disproportionate to wrongdoings such as minor offenses. We are stripped of procedural safeguards against recovery of property and seizure. We are held under the presumption of guilt in a civil forfeiture proceeding, having to prove our innocence- even if not having been charged nor having been convicted of anything.
There is also the problem of abuse of process and selective targeting based on racial and economic grounds. The potential for abuse, given the lack of any meaningful check or balance or disinterested arbiter of the entire process is not in accord with our civil liberties as Americans.
 The Institute for Justice states that 2012 is the most recent year for which consistent data is available.
 Pub. L. No. 106-185, 114 Stat. 202 (2000)