For too long, civil asset forfeiture has been a rampant “tool” of law enforcement at all levels of government. The opaque process gives the government power to take a citizen’s property absent charges being issued or a criminal conviction.
Around 37 states have rightly led the charge on reforming their civil asset forfeiture laws since 2014. Now, it’s the federal government’s turn.
This fall, members of Congress will likely be given an opportunity to pass the bipartisan Fifth Amendment Integrity Restoration Act, known as the Fair Act. This bill would raise the standard for seizing property on the federal level, protecting more Americans from unjust seizures.
Many victims of civil asset forfeiture never receive their property back after it is confiscated. One 10-year report found that only 8 percent of all property owners who had seized cash had it returned, while 92 percent of victims did not see a cent of their money make it back to their pockets.
Take the case of Cristal Starling. As the Institute of Justice (IJ) explains, in October 2020, her home was raided by the local police because they suspected her then-boyfriend of dealing drugs. Despite being acquitted and never suspected of wrongdoing, law enforcement seized $8,040 in cash, money she was saving to buy a food truck with. After spending years fighting on her own – unable to afford a lawyer – she will now finally see her day in court, but only because of IJ’s support and representation.
For those who do employ lawyers to retrieve their stolen assets, the legal costs can put them further in a financial hole. IJ estimates that a legal fight to reclaim property costs an average of $3,000 per case.
In Brian Moore’s case, the Drug Enforcement Administration (DEA) seized $8,500 from him at the Atlanta airport, despite never being charged with a crime. To receive this massive amount of his own money back, Moore accrued $15,200 in legal fees. The court refused to reimburse him for his legal fees, despite rewarding him his stolen property. Because of this, a large chunk of his winnings – in other words, the money that was already his – went to pay his attorneys.
These are just a few examples of this practice. Certainly, none of this is consistent with the Fifth Amendment’s clear edict that the government shall not deprive any person of their property “without due process of law” nor take away private property for public use “without just compensation.”
The Fair Act would correct these unconstitutional practices on the federal level. Under the proposed new rules, there must be a substantial connection between the property and the offense. The owner of the seized property must be the perpetrator and the property seized must be intentionally used to commit the crime. Increasing the burden of proof would ensure that only convicted criminals, not law-abiding civilians, pay the price.
The federal government’s shady asset forfeiture rules are also a problem for those who’ve had their property taken at the state and local level. The so-called “Equitable Sharing Program” allows state and local law enforcement to bypass state limits on civil asset forfeiture and use the federal system – as long as they share a part of their take with the feds. The FAIR Act eliminates this practice.
The bill also would limit the IRS’s ability to take money directly from Americans’ bank accounts when authorities simply suspect someone is structuring deposits to avoid reporting laws. According to a 2017 report by the Treasury Inspector General for Tax Administration (TIGTA), only 8 percent of these structuring investigations uncovered violations of tax law. Under the Fair Act, seizure would only be allowed if the state can prove the account owner was knowingly structuring their deposits.
Law enforcement asserts that civil asset forfeiture is a necessary tool to use against crime. However, in IJ’s study analyzing a decade’s worth of data from the Department of Justice, forfeiture neither leads to more crimes being solved nor less drug use.
Instead, the not-so-secret motivation behind civil asset forfeiture is that it is a key revenue raiser for law enforcement. The
As detailed by the Washington Post, of the $2.5 billion in spending reported in the forms, 81 percent came from property seizures in which no indictment was filed. This money is typically put towards “salaries, equipment, and other operational expenses.” Or, in the case of the Los Angeles Police Department, a $5 million helicopter.
In their letter in opposition to the Fair Act, the Major Cities Chiefs Association argued that the “policing for profit” accusation was silly while, a paragraph earlier, asserting that the Equitable Sharing Program must remain because it “provides state and local law enforcement agencies with a means to participate in joint task forces, purchase equipment (including officer safety equipment), conduct training, upgrade technology...”
Certainly, there is a good argument to be made about police departments needing funds to do all those things, but that is not an excuse to steal property from innocent Americans.
Members of Congress should pass this commonsense bill, restoring Americans’ Fifth Amendment rights and presumption of innocence.
Isabelle Morales is Federal Affairs Manager at Americans for Tax Reform.