Explainer: What you should know about civil asset forfeiture
Religion & Liberty Online

Explainer: What you should know about civil asset forfeiture

Earlier this week, Attorney General Jeff Sessions announced the Justice Department would be reinstating the Equitable Sharing Program, a controversial policy related to civil asset forfeiture. Several states have been making it more difficult to apply such forfeitures so this allows state and local law enforcement to explicitly circumvent state forfeiture restrictions.

Here’s what you should know about civil asset forfeiture.

What is civil asset forfeiture?

Civil asset forfeiture (hereafter CAF) is a controversial legal tool that allows law enforcement officials to seize property they claim has been involved in specific criminal activity.

Typically, civil law involves disputes between private citizens while criminal law involves disputes between private citizens and the state (i.e., the “people” represent the interest of victims). CAF is a hybrid of the two, a dispute between the state and a private citizen’s property. Because CAF proceedings charge the property itself with involvement in a crime, the property owner must prove the property was not involved in criminal activity. Such property can include land, vehicles, cash, personal possessions, etc.

As the Department of Justice notes, it is “because civil forfeiture actions are brought against the property directly that federal civil forfeiture cases have what appear to be very peculiar names, such as United States v. Ninety Three (93) Firearms, 330 F.3d 414 (6th Cir. 2003), United States v. One 1992 Ford Mustang GT, 73 F. Supp. 2d 1131 (C.D. Cal. 1999), or United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66 (2d Cir. 2002).

How can property commit a crime?

It can’t, as even the Justice Department admits:

At one time, it was said that civil forfeiture was based on the legal fiction that the property itself was guilty of the offense. That is no longer true. Although the property is named as the defendant in the civil forfeiture case, it is not because the property did anything wrong. Things do not commit crimes. People commit crimes using or obtaining things that consequently become forfeitable to the state. The in rem structure of civil forfeiture is simply procedural convenience. It is a way for the government to identify the thing that is subject to forfeiture and the grounds therefor, and to give everyone with an interest in the property the opportunity to come into court at one time and contest the forfeiture action.

Is civil asset forfeiture state or federal law?

Both. Only seven states and D.C. block law enforcement access to forfeiture proceeds. But because of a recent change by the Justice Department, all local law enforcement agencies have access to CAF through participation in “equitable sharing” (see below) with the federal government.

What is “equitable sharing”?

Equitable sharing allows state and local law enforcement to team with the federal government to forfeit property under federal law instead of state law. Participating agencies allow the federal government to keep some of the proceeds from the sell of the seized property, though they may receive up to 80 percent for themselves.

In 2015, President Obama ended the Equitable Sharing Program, but it was reinstated this month by the Trump administration.

In fiscal year 2016, the states received $314,983,323 in cash and sale proceeds from the federal equitable sharing program.

How long has civil asset forfeiture been used?

Although some form of civil forfeiture has existed since the founding of the United States, the modern form dates back to the Comprehensive Crime Control Act of 1984. This federal law authorized federal officials to implement a national asset forfeiture program.

What is the purpose of the federal civil asset forfeiture program?

According to the Department of Justice, the Justice Asset Forfeiture Program is an initiative that “removes the tools of crime from criminal organizations, deprives wrongdoers of the proceeds of their crimes, recovers property that may be used to compensate victims, and deters crime. The most important objective of the Program is law enforcement. Equitable sharing further enhances this law enforcement objective by fostering cooperation among federal, state, and local law enforcement agencies.”

How is property federally forfeited?

At the federal level, forfeiture can be administrative, judicial, criminal, and civil.

Administrative forfeiture is the process by which federal seizing agencies may declare property forfeited to the U.S. government without judicial involvement. Seizures must be based on probable cause. Among DOJ civil forfeitures from 1997 to 2013, 88 percent took place administratively.

Judicial forfeiture, both civil and criminal, is the process by which property is declared forfeited to the United States by a court.

Criminal forfeiture is an action brought as part of the criminal prosecution of a defendant that includes the forfeiture of property used or derived from the crime. If the defendant is convicted, the judge or the jury may find that the property is forfeitable.

Civil forfeiture is a proceeding brought against the property rather than against the person who committed the offense. Civil forfeiture does not require either criminal charges against the owner of the property or a criminal conviction. To obtain a federal forfeiture, the Government must prove the forfeiture and the connection between the property and the crime by a preponderance of the evidence.

What is the burden of proof for seizing property?

In federal law and 35 states, the burden of proof is placed on the owners of the property to prove they had nothing to do with the alleged crime. As the Institute for Justice explains,

In essence, most civil forfeiture laws presume that people are connected to any criminal activity involving their property and force them to prove otherwise to recover it. This is precisely the opposite of what happens in criminal trials, where the accused is presumed innocent until proven guilty by the government. It also often involves a practical impossibility, as it requires people to prove a negative—that they did not know about or consent to the illegal use of their property.

What if property is taken from an innocent person?

A person must prove they are innocent of the crime to get back their seized property. According to the Justice Department:

To protect the interests of truly innocent property owners who were unaware that their property was being used for an illegal purpose, or who took all reasonable steps under the circumstances to stop it, Congress has enacted a “uniform innocent owner defense.” See 18 U.S.C. § 983(d). Under that statute, a person contesting the forfeiture must establish ownership interests and innocence by a preponderance of the evidence.

If a claimant is successful in proving their innocence in a civil forfeiture case, Congress has mandated they are entitled to have the government pay all attorneys fees and other litigation expenses.

How much property is seized each year?

In fiscal year 2016, a total of $1,921,273,552 was collected in the sale of seized property by the federal government.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).