How the government can steal your stuff: 6 questions about civil asset forfeiture answered

(MENAFN- The Conversation) Editor's note: Should someone wearing a badge have the power to relieve a suspected drug dealer of his Maserati on the spot without giving him an opportunity to flee or liquidate and launder his assets? Known as civil asset forfeiture, this practice might sound like a wise policy.

Butlawmakers on both sides of the aislein Congressand the statesare challenging the Trump administration's embrace of the arrangement, which strips billions of dollars a year from Americans – who often have not been charged with a crime. Law professor and criminal justice expertNora V. Demleitnerexplains how this procedure works and why it irks conservatives and progressives alike.

Civil asset forfeiture
laws let authorities, such as federal marshals or local sheriffs, seize property – cash, a house, a car, a cellphone – that they suspect is involved in criminal activity. Seizures run the gamut from12 cans of peastomulti-million-dollar yachts .

The federal governmentconfiscated assets worth a total of about US$28 billionduring the decade ending in 2016, Justice Department data indicate.

In contrast tocriminal forfeiture , which requires that the property owner be convicted of a crime beforehand, the civil variety doesn't require that the suspect be charged with breaking the law.

ThreeJustice Department agencies– the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and Federal Bureau of Investigation (FBI) – do most of this confiscating. Most states also permit local prosecutors to take personal property from people who haven't been charged with a crime. However,some stateshave begun to limit that practice.

Even when there are restrictions on when and how local and state authorities can seize property, they can circumvent those limits if the federal government ' adopts ' the impounded assets.

For a federal agency to do so requires the alleged misconduct to violate federal law. Local agencies get up to 80% of the shared proceeds back, with the federal agency keeping the rest. The divvying-up isknown officiallyas ' equitable sharing .'Crime victimsmay also get a cut from the proceeds of civil forfeiture.

Technically, the government must demonstrate that the property has something to do with a crime. In reality,property owners in most statesmust prove that they legally acquired their confiscated belongings to get them returned. This means the burden is on the owners to dispute these seizures in court. Court challenges tend to arise only when something of great value, like a house, is at stake.

Unless an owner challenges a seizure and effectively proves his innocence in court, the agency that took the property is free to keep the proceeds once the assets are liquidated.

Many low-income people don't use bank accounts or credit cards. They carry cash instead. If they lose their life savings at a traffic stop, theycan't afford to hire a lawyerto dispute the seizure, the Center for American Progress – a liberal think tank – has observed.

And disputing civil forfeitures is hard everywhere. Some states require a cash bond, others add a penalty payment should the owner lose. The process is expensive, time-consuming and lengthy, deterring even innocent owners.

There's no comprehensive data regarding how many people get their stuff back. But over the 10 years ending in September 2016, about 8% of all property owners who had cash seized from them by the DEA had it returned, according to a report from theJustice Department's inspector general .

Manyconservativesandprogressivesdislike civil asset forfeiture. Politicians on the left and right have voiced concerns about the incentives this practice gives law enforcement to abuse its authority.

Critics across the political spectrum also question whether different aspects of civil asset forfeiture violate theFifth Amendment , which says the government can't deprive anyone of 'life, liberty, or property, without due process of law' or is unconstitutional for other reasons.

Until now, theSupreme Courtand lower courts, however, have consistentlyupheld civil asset forfeitureswhen ruling on challenges launched under the Fifth Amendment. Thesame goes for challengesunder theEighthAmendment, which bars 'excessive fines' and 'cruel and unusual punishments,' and the14th Amendment , which forbids depriving 'any person of life, liberty, or property, without due process of law.'

In 2019, theSupreme Courtunanimously found for the first time that these constitutional protections against excessive fines apply not just to the federal authorities but to the states as well.

Some concerns resonate more strongly for different ideological camps. Conservatives object mostly about how this impoundingundermines property rights .

Liberals are outraged that the poor andcommunities of colortend to be disproportionately targeted, often causing great hardship to people accused of minor wrongdoing.

Another common critique: The practice encourages overpolicing intended topad police budgetsor accommodatetax cuts . Revenue from civil asset forfeitures can amount to a substantial percentage of local police budgets, according to aDrug Policy Alliance studyof this practice in California. This kind of policing can undermine police-community relations.

TheJustice Department 's guidelines state that forfeitures 'punish and deter criminal activity by depriving criminals of property used in or acquired through illegal activities.'

However, theInspector General's officenoted 'without evaluating data more systemically, it is impossible for the Department to determine … whether seizures benefit law enforcement efforts, such as advancing criminal investigations and deterring future criminal activity.'

The federal revenue raised through this practice, which emerged in the 1970s, mushroomed from $94 million in 1986 to a high of $4.5 billion in 2014, according to theJustice Department .

The Justice Department says it returnedmore than $4 billionin forfeited funds to crime victims between 2000 and 2016, while handing state and local law enforcement entities at least $6 billion through 'equitable sharing.'

The scale of seizures on thestateand local level is less clear.

Under the leadership ofAttorney General Eric Holder , the Obama-era Justice Department determined that civil asset forfeiture was more about making money than public safety. It thenchanged the guidelines for asset adoption .

Beginning in 2015, joint state-federal task forces could continue to share forfeiture proceeds butstate agencies were no longer permittedto ask the federal government to forfeit property they had taken on their own.

' I love that program ,' Attorney General Jeff Sessions said in 2017. 'We had so much fun doing that, taking drug dealers' money and passing it out to people trying to put drug dealers in jail. What's wrong with that?'

Attorney General William Barr, Sessions' successor in the Trump administration, has alsodefended this policy .

When Sessions changed the policy, legislative changes seemed possible. Senate Judiciary Committee ChairmanChuck Grassleysent Sessions a memo about how the federal funds obtained from seizures were wasted and misused. In some cases, Grassley wrote, the government provided 'misleading details about some of these expenditures.'

The House of Representativesvoted in 2017 for an amendment that would restrictcivil asset forfeiture adoption.

The House also approved abipartisan measurerestricting civil forfeiture on June 20, 2019. This one goes further though and would substantially curtail the federal government's powers.

State governments have also tried to discourage this kind of confiscation.New Mexico, Nebraska and North Carolinahave banned civil forfeiture.Michiganhas made it easier to challenge these seizures.Californialimited equitable sharing, andother stateshave increased theburden of proof the government must meet . But in many states,investigative reportinghas shown that innocent owners continue to lose their property.

In aGeorgia Law Reviewarticle, I gave examples of other ways to keep police departments and municipalities funded, such as increasing fines and fees.

Unless the police pursue some alternatives, funding woes will continue to contribute to abusive policing practices that fall most heavily on those who can the least afford them: the poor and communities of color.

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