This was a paper I composed for my American Politics 210 course, back in mid-2017. If I get motivated enough, I’ll do an update on significant changes between the time this was written and the recent Timbs vs. Indiana Supreme Court ruling (woot).

Though the idea has Biblical roots, civil forfeiture (or civil asset forfeiture) originated in the United States as practice of import regulation. Born from demand to seize smuggled or non-tariffed goods, civil forfeiture was a way to legalize these seizures without first prosecuting overseas property holders. Four subsequent acts of government have pushed the scope of civil forfeiture immeasurably beyond the original intentions of the Founders. I will argue that our government deliberately allowed the creation of a gaping loophole within the Fourth and Fifth Amendments, allowing for immediate and complete avoidance of due process, imposition of excessive fines, and unreasonable government search and seizure of the property of U.S. citizens.

Civil forfeiture was first ruled on by the Supreme Court in 1827, in the case of The Palmyra, 25 U.S. 1, 14(1827). The Palmyra was a private vessel under commission of the King of Spain and was believed to have been used for piracy against other U.S. ships. The Grampus, a U.S. vessel of war, captured The Palmyra, brought it to port, and the government attempted to seize the ship and all goods upon it. When the ship’s captain brought forth the argument that the Palmyra could not be forfeited until he was proven he was guilty of a crime, the Supreme Court ultimately ruled that “the thing is here primarily considered the offender, or rather the offence is attached primarily to the thing” (Fuchs 2014).

This first ruling still seems somewhat bizarre – perhaps born more from convenience of prosecution than from honest and labored reflection of the Constitution. However, the scope of this decision was at the time limited to circumstances of jure belli, the laws or acts of war, or marine tort, meaning “injury, loss or damage caused to a person or their interests in a maritime setting” (Stonecypher 2008). This resulted in a narrow set of circumstances allowing for a civil, rather than a criminal, in rem seizure of property without requiring a preceding in personam criminal conviction of the property owner(s). This means the government had the right to seize property or vessels in maritime settings that were acting against U.S. law without first bringing criminal charges against the holders of the property. Civil forfeiture was most commonly used to seize smuggled goods in payment of circumvented import taxes (Keblesh 2017). These laws have been in effect since the founding of the United States (Jones 2017).

Civil forfeiture remained a narrow and uncommon practice until the 1970s, though the Prohibition-era enactment allowing for warrantless search of automobiles later influenced the scope of civil forfeiture as it stands today (Carroll 1925). The enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970 was the first expansion of civil forfeiture, extending the practice to the seizure of illegal drugs, drug paraphernalia, and drug manufacturing equipment (Jones 2017). The idea was to apply civil forfeiture laws to assist in crippling the manufacturing and trafficking of illicit drugs.

Though the 1970 expansion widened the umbrella of civil forfeiture, the practice did not skyrocket until the eighties. During the Reagan administration’s “tough on crime” reforms, the Comprehensive Crime Control Act of 1984 was passed, albeit under varying bipartisan support. The twenty-three chapters of updated crime statutes included a broad loosening of civil forfeiture. Title III of this act and one additional piece of legislation in 1986 allowed civil forfeiture to include seizure of “money, securities, and other proceeds traceable to drug transactions… property equal in value to forfeitable property that is no longer available or accessible… cash, bank accounts, jewelry, cars, boats, airplanes, businesses, houses, and land” (Drug Policy Alliance 2014). Beyond the expansion of what and how property could be forfeited, the act also created the Department of Justice Assets Forfeiture Fund. This fund was created to deposit the proceeds of forfeitures outside of the Treasury’s General Fund and allow “equitable sharing” of profits between federal and local law enforcement agencies. This allowed local law enforcement to bypass stricter state regulation on forfeiture, with as much as 80% of any seizure’s value returning to the coffers of local law enforcement participating in the program.

Few measures were initially put in place to avoid abuse, and with the extremely high return on investment, law enforcement agencies now had incredible incentive to actively seek out civil forfeiture. Limited oversight in the spending of the proceeds meant that law enforcement could use their newly-acquired funding in just about any way they pleased. Many states began to pass legislation to reflect the federal standards of civil forfeiture. Today, there are only 9 states with strict regulation on the practice; in the other 41 states, between 50-100% of proceeds go back into the hands of local law enforcement without requiring the “adoption” of goods by the federal government (Drug Policy Alliance 2014). The laws of the other 9 states are easily circumvented by participation in the federal Equitable Sharing program. From 1985 to 1993, more than $3 billion in assets was seized by the government (Enders 1993). Those numbers have not decreased; in 2014 alone, the Assets Forfeiture Fund deposited over $5 billion – $1.5 billion more than all burglaries in the United States that same year (Ingraham 2015). The estimated total revenue of the past decade is estimated to be around $28 billion, though quite questionably, “the federal government doesn’t keep data collections on its forfeiture programs for further program study” (Ford 2017). States and the federal government are often unwilling to impose limiting statutes because it would fall on the state or law enforcement agency to close the massive budget gaps that abandoning the current practice of civil forfeiture would leave.

The financial incentive of forfeiture has become so engrained that a survey of law enforcement agencies reported that “forty percent of police executives believe civil forfeiture funds are ‘necessary as a budget supplement’” (Jones 2017). In 1990, the Attorney General announced “we must significantly increase forfeiture production to reach our budget target… Every effort must be made to increase forfeiture income” (Drug Policy Alliance 2014). Police actively seek out forfeiture, often targeting innocent civilians to ramp up department revenue, particularly small business owners, long-distance travelers, minorities, and low-income citizens who may be less likely to keep funds in bank accounts or in the process of transporting cash (O’Harrow, et al. 2014, Ford 2017). These easy targets often also lack the means to challenge forfeitures in court. The ever-increasing emphasis on seizures could mean that law enforcement agencies are putting their most deliberate efforts in taking money from citizens to supplement their budgets and neglecting other objectives that explicitly and directly impact public safety.

Tens of thousands of cases of alleged abuse have been brought to court, but civilians have their work cut out for them. Civil forfeiture allows for seizure under mere suspicion of ties to a crime; it does not require any criminal charges levied against a person or that any party be found guilty. Instead, it is a civil matter levied against the property itself (Jones 2017, Keblesh 2017). Because these cases are civil lawsuits against an inanimate object, the Supreme Court has ruled that the protections of the Constitution do not apply. The seized property is treated as an entity independent from the owner of the property and the “entity” is not awarded due process, right to an attorney, assumption of innocence, or objection to hearsay, and guilt does not require proof beyond a reasonable doubt (Jones 2017, Fuchs 2014). It often takes years and tens of thousands of dollars in court and legal fees for citizens to regain seized assets; many of these cases end up as settlements with the government keeping a substantial portion of the proceeds (Sallah, et al. 2014). Small business owners have had their accounts drained due to legally-reported large cash deposits; families have had their homes seized due to alleged (and unsubstantiated) drug dealings; vehicles have been seized due to misdemeanor infractions; travelers have had their cash savings confiscated simply for travelling within “known drug corridors” (Seo 2017). Police officers regularly ask for disclosure of large amounts of cash during routine traffic stops. Almost anything can be confiscated by the loosest implications of crime, and there is very little opportunity of remittance for citizens subjected to the “stop-and-seizure” behavior of law enforcement (Sallah, et al. 2014).

The magnitude of the current practice of civil forfeiture has been the subject of widespread outcry from citizens, representatives across party lines, and by organizations such as the ACLU, Heritage Foundation, Institute for Justice, American Civil Liberties Union, and the Justice Department’s Office of the Inspector General (Ford 2017). Attorney General Jeff Session’s 2017 repeal of the Obama administration’s regulations on civil forfeiture opens the issue up for challenge by the Supreme Court, and Justice Clarence Thomas has made it apparent that he intends on challenging the precedents of the court (Ford 2017, Seo 2017). There are grounds to do so: there is a strong argument that the current practice of civil asset forfeiture directly violates the Fourth and Fifth Amendments. It has only been the Supreme Court’s earlier decisions that these protections do not apply to civil matters that has kept civil forfeiture a booming business for the government. Those who favor judicial restraint must recognize that the original laws of civil forfeiture were only meant to enforce customs and tax law, and that the expansion of civil forfeiture to rampant, highly unregulated, nationwide criminal enforcement was not the intention of the Founders. Judicial activism played the largest role in the expansion of civil forfeiture. Modern interpretation of the Constitution allowed for the application of warrantless searches beyond sea vessels to automobiles during the 1920s, and allowed the further expansion of the scope of civil forfeiture.

While some criminal activity is hindered by civil asset forfeiture, it has largely impacted innocent civilians. In a recent study of 100 DEA forfeiture cases by the Inspector General, only 44 of those cases had any ties to current investigations or resulted in new investigations – meaning that over half of the cases did nothing to further the inherent purpose of the Drug Enforcement Agency (Seo 2017). A report on these findings from the Inspector General reprimanded the DEA, stating “When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution” (Seo 2017). Reform is necessary to place protections on innocent civilians and keep the spirit of the Constitution intact.

The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Modern technology negates the necessity for warrantless automobile searches; law enforcement officers can now communicate easily and instantaneously with judges via platforms like Skype and FaceTime (Seo 2017). The staggering revenue, lack of criminal convictions or investigations, and number of contested cases of civil forfeiture is grounds for violation of the Fourth Amendment. Additionally, there are thousands of cases never contested in court due to the hardship it would impose upon the property owner (Sallah, et al. 2014).

The Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Supreme Court needs to address issues of double jeopardy in which citizens are subjected to both criminal and civil forfeiture proceedings and essentially punished twice for the same crime (Drug Policy Alliance 2014). The deprivation of property without the due process of law – such as the lack of criminal conviction, holding of a trial without representation, the right to testify, the right to object to hearsay, or even the right to be a party at the civil proceedings – is a glaring issue of current civil forfeiture practices (Drug Policy Alliance 2014).

Requiring criminal conviction as a prerequisite to forfeiture, providing legal counsel for parties involved in proceedings, imposing a greater burden of proof in civil proceedings, redirecting funds of forfeiture out of the hands of the federal government and state law enforcement, abolishing the Equitable Sharing loopholes and allowing for state regulation are reforms that would massively alter the rampant malpractice of civil asset forfeiture. The Founders put these Amendments of the Constitution in place to safeguard the citizens from abuse by the government, but that is inarguably what has happened within this broad and unregulated practice. In a recent statement, Supreme Court Justice Clarence Thomas said, “This system – where police can seize property with limited judicial oversight and retain it for their own use – has led to egregious and well-chronicled abuses…  In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation” (Seo 2017). Civil asset forfeiture as it stands is entirely unconstitutional – and I believe the Founders would strongly agree.

References

Carroll v. United States. 267 U.S. 132. (1925). Retrieved from http://supreme.justia.com/cases/federal/us/267/132/case.html

Drug Policy Alliance. (2014, Jan). Civil asset forfeiture. Retrieved from http://www.drugpolicy.org/resource/civil-asset-forfeiture

Enders, John. (1993, April). Forfeiture law casts a shadow on presumption of innocence. Los Angeles Times. Retrieved from http://articles.latimes.com/1993-04-18/local/me-24209_1_forfeiture-law

Ford, Matt. (2017, April). Justice Thomas’s doubts about civil forfeiture. The Atlantic. Retrieved from https://www.theatlantic.com/politics/archive/2017/04/clarence-thomas-civil-forfeiture/521583/

Fuchs, Erin. (2014, Nov). Why cops can seize your property even if you’re innocent. Business Insider. Retrieved from http://www.businessinsider.com/supreme-court-ruling-on-civil-forfeiture-2014-11

Ingraham, Christopher. (2015, Nov). Law enforcement took more stuff from people than burglars did last year. Washington Post. Retrieved from http://www.washingtonpost.com/news/wonk/wp/2015/11/23/cops-took-more-stuff-from-people-than-burglars-did-last-year/?utm_term=.081e0b322987

Jones, Rachel. (2017, May). Excessively unconstitutional: civil asset forfeiture and the excessive fines clause in Virginia. William & Mary Bill of Rights Journal, 25(4), 1393-1422. Retrieved from SNHU Shapiro Library. HTML.

Keblesh, Michael J. (2017, June). Using insurance to regulate civil forfeiture. Creighton Law Review, 50(3), 455-478. Retrieved from SNHU Shapiro Library. PDF.

O’Harrow, Robert Jr., et al. (2014, Sept). They fought the law. Who won? Washington Post. Retrieved from http://www.washingtonpost.com/sf/investigative/2014/09/08/they-fought-the-law-who-won/?utm_term=.be9f299db84a

Sallah, Michael, et al. (2014 Sept). Stop and seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes. Washington Post. Retrieved from http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/?utm_term=.cdba0f31f36a

Seo, Sarah A. (2017, June). How the fight over civil forfeiture lays bare the contradictions in modern conservatism. Washington Post. Retrieved from http://www.washingtonpost.com/news/made-by-history/wp/2017/07/24/how-the-fight-over-civil-forfeiture-lays-bare-the-contradictions-in-modern-conservatism/?utm_term=.4a4e2dc949d5

Stonecypher, Lamar. (2008, Dec). Maritime law torts. Bright Hub Engineering. Retrieved from http://www.brighthubengineering.com/seafaring/21140-maritime-law-torts/

The Palmyra. 25 U.S. 1. (1827). Retrieved from https://supreme.justia.com/cases/federal/us/25/1/

Copyright E.J.R. Webster, 2017, all rights reserved.