Civil asset forfeiture is one of the most controversial tools used by law enforcement, both at the state and federal levels. Under the guise of fighting the War on Drugs, police are permitted to engage in what amounts to highway robbery, and are even given a perverse incentive to seize the property of innocent people.

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.

In criminal cases, an individual must be convicted prior to the seizure of property. In civil cases, however, 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.

In recent years, activists and government accountability groups have called for increased scrutiny of asset forfeiture processes. Policy makers have responded, proposing legislation ranging from requiring a conviction before assets can be seized, increasing the burden of proof for a seizure, or demanding increased visibility of how proceeds of forfeitures are spent. Since 2014, twenty-eight states have passed a bill reforming civil asset forfeiture policies. However, there are still only three states in which assets can only be seized through the criminal process.

In early 2019, the Supreme Court made a ruling in the case of Timbs v. Indiana, which indirectly related to civil asset forfeiture laws and may be used as a precedent in future cases. The Court ruled unanimously that the constitution’s ban on excessive fines applies to state governments, in a case in which a man’s $42,000 car was seized relating a drug violation that carried a maximum fine of $10,000. This ruling may severely limit the ability of states going forward to seize assets with first obtaining a conviction.

We believe that civil asset forfeiture should be abolished in every state and at the federal level, as a way to restore the “innocent until proven guilty” principle in the criminal justice system.

Questions about forfeiture laws? Check out our War on Drugs FAQs or contact us!