Civil asset forfeiture is one of the most controversial weapons in the arsenal of law enforcement. While some argue that it is crucial to the maintenance of “law and order,” critics on both sides of the aisle believe that it is an unconstitutional abuse of power that amounts to a trial without a jury. Now the Supreme Court has an opportunity to drastically curtail this power. If there is truth in the adage “crime doesn’t pay,” it is because one of the goals of the criminal justice system is to ensure that people do not profit off of breaking the law. One crucial tool in this strategy is asset forfeiture, the ability of law enforcement to seize the ill-gotten gains of criminals, and to prevent them from committing further crimes. But while it is hard to argue against such a tool, the argument gets murkier concerning civil asset forfeiture. In June we wrote about how civil asset forfeiture allows police to seize money and property from people under the pretense that it was used in connection with a crime, often without securing a conviction or even pressing charges. Stories abound of police pulling over drivers and seizing large sums of cash without even allegations of a crime having been committed. However, civil asset forfeiture can also be used by law enforcement in the case of a conviction, if the goal is to circumvent restrictions on excessive fines. Recently, the United States Supreme Court heard arguments in Timbs v Indiana, a case that could limit the ability of state law enforcement to seize the property of their citizens in such cases. In 2013, Tyson Timbs was arrested for selling heroin out of his car, and pled guilty to a crime that carries a maximum fine of $10,000. However, Timbs’ Land Rover is valued at $40,000, which exceeds the maximum fine, prohibiting law enforcement from seizing the vehicle through the criminal process. In search of a loophole, Indiana police seized the vehicle through the civil process, hoping that doing so would prevent Timbs from being able to challenge the seizure. In dispute is whether or not civil asset forfeiture of this kind violates the eighth amendment protection against excessive fines. A state trial court sided with Timbs, but the Indiana State Supreme Court overruled this decision, stating that “the Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle.” The case is now in the hands of the US Supreme Court. Due in several months, the Supreme Court’s decision could have an enormous impact on the ability of states to seize property through the civil process. Since civil asset forfeiture involves, essentially, charging property with being involved in a crime, rather than the charging the person who committed the crime directly, the decision will rest on whether the Eighth Amendment applies to these cases. “We all agree that the Excessive Fines Clause is incorporated against the states,” stated Justice Gorsuch during arguments. “Whether this particular fine qualifies because it’s an in rem [property] forfeiture, another question.” If the Court decides that the Eighth Amendment does apply to civil asset forfeiture, it may limit the ability of states to seize property without a conviction. If seizing property through the civil process is deemed an excessive fine, it could be argued that any civil asset forfeiture not connected to a criminal conviction could be considered excessive. “So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari?” asked Justice Breyer. This argument, while obviously absurd, gets to the heart of why so many object to the way civil asset forfeiture is used around the country. Ultimately, the Supreme Court is unlikely to make such a broad and sweeping ruling. Civil asset forfeiture continues to be a major problem around the country. On November 20th, the Nashville City Council in Tennessee voted 25-5 to renew its federal-state “equitable sharing” program, thereby circumventing a recently passed state restriction on seizures. Only six states, plus the District of Columbia, have banned equitable sharing. There are still only three states that have completely banned civil asset forfeiture. Police around the country continue to abuse their power in the War on Drugs by seizing cash and property under the pretense of stopping drug trafficking. While the Supreme Court’s decision in Timbs v. Indiana could create an additional hurdle in this process, only abolishing civil asset forfeiture will ensure the end of these abuses. Tom Houseman, Policy Director
Civil asset forfeiture should not be a partisan issue. People on every point of the political spectrum should have serious concerns about a policy that allows law enforcement officials to seize someone’s property without having to charge that person with a crime. When the government does not bear the burden of proof for seizures, and law enforcement can keep the proceeds of the property they seized, everyone should be alarmed. Seizing the assets of criminals is a necessary tool of law enforcement, but the difference between criminal forfeiture and civil forfeiture is enormous. Civil asset forfeiture allows police officers to pull people over under minimal pretenses, seize any cash they have on them, and then claim that it was earned through drug sales. Over the course of the last decade, the Drug Enforcement Agency has seized $3.2 billion from people without any charges being filed, and without any judicial review of the seizure. Whatever your feelings are about the role of government in people’s private lives and how the War on Drugs is being fought, it is difficult to defend these policies. Yet when looking at our map grading states on their approach to civil asset forfeiture, it is startling how little regulation and transparency most states have in place. This is not just an issue that affects blue states or red states, but a cross-country epidemic that has many policymakers on both sides of the aisle entrenched in their defense of the status quo. States in the Deep South are some of the worst offenders, almost all of them receiving a D or F grade. Yet within those states many conservative politicians have railed against the policy as a gross abuse of the government’s power. In 2018 two Republican State Senators in Alabama introduced a bill that would require a conviction before any asset forfeiture and would send proceeds from forfeitures to the state’s general fund, rather than to law enforcement coffers. In 2017, Kentucky Senator Rand Paul introduced the Fifth Amendment Integrity Restoration (FAIR) Act, which would apply similar reforms at the federal level. But letting law enforcement seize assets with impunity is not a problem confined to red states. CNDP’s analysis graded Massachusetts and Washington, two of the most progressive states on drug policy in general, with F’s on their civil asset forfeiture policies. New Jersey also received an F, Delaware and Rhode Island both earned a D-, and Maine a D+. Recent attempts have been made in these states to hold law enforcement accountable and limit their power. Unfortunately, these bills are often held in committee, never even getting a vote by state legislative bodies. The Alabama bill passed through the State Senate with a 25-1 vote, but never received a vote in the House. A similar bill in Rhode Island, introduced by three Democratic State Senators, was recommended “to be held for further study” by the Senate Judiciary Committee, ensuring that it would never receive a vote. In 2017, a Massachusetts civil asset forfeiture reform bill also died without ever receiving a vote. Meanwhile, no action has been taken on Rand Paul’s FAIR Act since it was introduced in 2017. Not every state has been as intransigent on this issue. In 2016, California outlawed equitable sharing, a policy that allows law enforcement to circumvent state policies by sharing proceeds of civil asset forfeiture with federal law enforcement. In 2017, the Republican-controlled Wisconsin legislature passed a bill requiring a criminal conviction before assets could be seized. Both states are now among only fourteen that we graded C+ or higher. There is still a long way to go on civil asset forfeiture policies at both the state and federal level. Only three states have outlawed the practice entirely. More than half of all states allow police departments to keep all of the proceeds from the assets they seize. But the more attention we can give to this unfair and destructive policy, the more pressure we can put on states to reform it. Tom Houseman
Civil Asset Forfeiture Over the past three months, many of you responded to our TAKE ACTION on civil asset forfeiture reform in Illinois. We are delighted to report that HB 303 and SB Al, sponsored by Rep. Will Guzzardi (D-39th) and Sen. Don Harmon (D-39th) passed the Illinois Senate unanimously and the House with one dissenting vote, and now awaits Governor Rauner’s signature. Most importantly, the bill requires that the burden of proof rest with the government in cases where an individual’s property is seized when law enforcement claims it has been involved with illegal activity. Until now, property owners have – contrary to U.S. standards of justice – had to prove their innocence. The bill also requires police and prosecutors to collect data and report on seized property and the use of proceeds. It exempts small sums of cash and mere possession of small drug amounts from seizures, and it makes it easier for “innocent victims” to claim the return of their property. This is not a perfect bill. Proceeds from seizure still go to support the budgets of police and prosecutors, a clear conflict of interest. Six states, including Indiana, Missouri, and New Mexico, keep agencies from keeping forfeiture proceeds. But the Illinois legislation is an important step forward. We recognize the ACLU, Cabrini Legal Aid, and other advocates for their extraordinary work. Thank you for your support. Click for more information. Taxation and Regulation Vermont, Connecticut, and Rhode Island are poised to join the eight states that have already legalized marijuana for recreational use. CNDP staff has developed strong clergy support in each of these three. They are especially significant because anyone could become the first to take this step through legislative action rather than a ballot initiative. Procedurally, Vermont is the closest. In mid-May, the house and senate approved adult possession of small amounts of marijuana. After initially vetoing the bill, Governor Scott supported a compromise, including a commission to recommend a tax and regulation system. This bill awaits legislative action when the General Assembly reconvenes in January. Connecticut introduced a tax and regulate bill in March. While neither chamber voted, the draft budget forwarded by the Senate and House contains a $180 million revenue total from marijuana sales. The session ended without budget approval, but action, including marijuana legalization, could take place in the next few weeks. Rhode Island has been on the cusp of tax and regulation for the past two years. Advocates are confident of majority support in both the House and Senate and note that three out of five Rhode Islanders support ending prohibition. The key task is to convince leaders in both chambers that the time has come for a vote.
Did you think that under the law we are innocent until proven guilty? Not when it comes to civil asset forfeiture. Police are allowed to seize property they suspect is connected to a crime. Usually, they take cars. Cash and electronic equipment are also likely objects of seizure if police decide to search where victims live. The burden is on owners to court to get their property back. They are not given counsel. Since most of the defendants are very poor, they cannot afford their own. The instructions on where and when they can plead their case are confusing or non-existent. If they don’t act fast enough, their property is auctioned off and proceeds handed over to law enforcement. It is estimated that a significant majority of individuals whose process is seized in Cook County end up never even trying to prove that their property should be returned. This is not surprising (if painful to watch). Without procedures telling them what to do, the victims of property seizure simply give up.
It’s easy enough to read about civil asset forfeiture and be angry at a system that seizes property and keeps it until the owners prove they have not committed a crime. Last week we wanted to get a more personal, first-hand view, of how the process works. All proceedings for civil asset forfeiture in Cook County are held in Room 1707 of the Daley Center. Anyone can go. We sat in on a docket of cases. Four prosecutors from the Cook County State’s Attorney were present. No one represented the four defendants waiting to be called. All were African-American.
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