Most people assume government police are tasked with stopping robbers, but a little-known legal fiction effectively allows the cops to become the robbers.
This practice, known as civil asset forfeiture, violates Americans’ constitutional rights to due process and private property. By creating economic incentives, civil asset forfeiture encourages government law enforcement and criminal justice agencies to “procure and seize” people’s property, ignoring their stated promise to “protect and serve” the people.
However, in 2017, lawmakers in several states, such as Indiana and North Dakota, are considering reforming their state’s laws allowing government criminal justice agencies to take possession of property and money believed to have been used or gained by criminal acts, and many more states have already done so.
Civil asset forfeiture has been a part of Anglospheric law since the 17th century, when the English government began using the practice to punish business owners violating the British Navigation Acts, a series of laws allowing government law enforcement agents to engage in piracy against individuals lacking government approval for doing business in English ports. Instead of punishing the person after establishing guilt, civil asset forfeiture allowed, as it does today, the government to pretend the property itself was guilty.
As Supreme Court Justice Joseph Story explained in an 1844 maritime case from which today’s civil asset forfeiture laws descend, “The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner.”
Part of the problem with civil asset forfeiture is it is, by definition, a civil proceeding. Civil asset forfeiture proceedings are separate from criminal proceedings and can go forward without a criminal charge ever being filed, much less a conviction.
Because civil asset forfeitures are against the property, or in rem, the government is not required to prove a person committed a crime. Rather, the person must prove to the government that no crime was committed, thereby exonerating the property.
Government agencies, including the criminal justice system, are comprised of people, and people are imperfect beings, ultimately working to promote their own interests at the expense of others.
A living organism, such as an amoeba in a petri dish, consumes resources and uses them to grow. A government agency likewise seeks to grow by consuming resources—in this example, money and property. Therefore, law enforcement officers and government judges are incentivized to engage in civil asset forfeiture and transfer ownership of people’s property—all with the stated goal of serving justice. The real goal, however, is consuming resources.
In a paper published by the Journal of Criminal Justice, California State University-San Bernardino criminal justice professor John Worrall surveyed 1,400 city and state government law enforcement officials about civil asset forfeiture, correlating the poll with data from the U.S. Department of Justice’s Bureau of Justice Systems. The results are not surprising: A plurality—nearly 40 percent—of government law enforcement officials who responded to Worrall’s survey confirmed civil asset forfeiture is financially necessary for their operations.
Worrall also found government law enforcement’s dependence on civil asset forfeiture is linked to government support for the practice. The reason for the link is as simple as it seems: Civil asset forfeiture benefits the government, and it does so at the expense of the people.
“The highly significant relationship between total proceeds received and dependence on civil forfeiture suggests, reasonably enough, that the agencies that not only engaged in comparatively more civil asset forfeitures, but also received generous revenues from such activities, throughout the past 3 years, came to depend on the practice more readily,” Worrall wrote. “That is, the more certain law enforcement agencies received in the way of forfeiture proceeds, the more likely they were to depend on such revenues.”
Supporters of civil asset forfeiture often claim the practice is meant to ensure crime does not pay, but it shouldn’t pay to strip Americans of their property and rights.
President Donald Trump’s appointment of forfeiture aficionado Jeff Sessions as the federal government’s attorney general means state lawmakers will likely have to continue to make Washington, DC irrelevant by protecting the rights of their citizens without help from the federal government.
By moving from the current unfair system to a system of criminal asset forfeiture—in which assets and property are temporarily seized and held by the government until the government has proven the individual’s guilt (and promptly returned to the individual if he or she is found not guilty in a court of law)—lawmakers can remove one of many unintended consequences created by the expansion of government power, ensuring law enforcement agencies are truly acting to “protect and serve” the people, instead of acting to procure and seize the people’s stuff.