Forfeiture law permits the Drug Enforcement Administration (DEA), along with state and local police departments, to seize property merely on the grounds that it may have been connected to a crime. In drug cases, assets seized might extend to a home in which possible sale is merely suspected, or a car in which drugs might have been transported. If an individual gives a ride to a friend who, unbeknownst to her, is carrying cocaine, the government can legally seize her car. The only recourse left to the owner is to sue the government. If she is unsuccessful, the government can sell her car and use the money to support further drug investigations.
In criminal cases, an individual must be convicted prior to the seizure of property. In civil cases, the suit is brought against the property itself. The property is “guilty” of participating in the crime.
The standard of proof for seizing property is low. The federal government need only meet the “preponderance of the evidence” standard rather than “beyond a shadow of a doubt,” as in criminal cases. The burden of proof is on the owner to demonstrate innocence.
At the state level, standards of proof can be “probable cause,” an even lower standard. Prosecutors are allowed hearsay evidence even as this is denied to defendants. Prosecutors can use hearsay evidence to seize property. Defendants, on the other hand, cannot use hearsay evidence to prove their innocence.
Some states have sought to reduce the prosecutorial incentives by stipulating that proceeds must be allocated to a third-party purpose, such as education. However under a federal “sharing program,” states can funnel proceeds to the federal government with the possibility that 80% will be reallocated to these states for drug law enforcement.
The process is riddled with conflict of interest. Prosecutors have a direct financial stake in which cases are brought and their disposition. Assets seized under drug forfeiture laws help fund budgets of state and local police departments, as well as the federal agencies overseeing drug enforcement. With the Comprehensive Crime Control Act of 1984, the Department of Justice forfeiture fund has grown from $27 million in 1985 to over $3 billion in 2008. In 2015, the government seized more property from Americans through forfeiture laws than burglars did.
Drug forfeiture laws provide a sinister incentive for the War on Drugs to continue. Calls for reform have emerged all over the country. In April 2016, Florida passed a law requiring police to make an arrest before seizing most kinds of property. This action reflects an ongoing effort of activists and others to restore the “innocent until proven guilty” principle in the criminal justice system.
Forfeiture In the News
Hawaii is Still Waiting for an Audit of Policy Property Seizures
Civil Beats – January 2, 2018
NH AG Challenged on Use of Drug Forfeiture Laws
Fosters.com – December 29, 2017
Nebraska Just Abolished Civil Forfeiture, Now Requires A Criminal Conviction to Take Property
Forbes – April 20, 2016
Florida Just Made It Harder For Police To Take People’s Stuff
Huffington Post – April 1, 2016
Asset Forfeiture and Police Corruption
Independent Institute – December 3, 2015
Law enforcement took more stuff from people than burglars did last year
Washington Post – November 23, 2015
Blacks, Hispanics Account for Nearly Two-Thirds of of Cops’ Cash Seizures
The San Diego View and Viewpoint – October 22, 2015
What happens to assets seized from drug dealers?
Richmond Times-Dispatch – August 1, 2015
Blog Posts on Forfeiture
CNDP Advocacy UpdatesJuly 11, 2017
Civil Asset Forfeiture: A Path to ReformMay 11, 2017
Government Theft: A First-Hand AccountMay 11, 2017
Asset Forfeiture = TheftMarch 2, 2017