Guilty Until Proven Innocent: Why Seizing Property Under Civil Asset Forfeiture Laws Is Uncivil

This week seems to be one in which I think about the importance of property rights in a free society. Earlier this week, I wrote about eminent domain abuse and how it causes issues with the world of property-owning. Apparently, that isn't the only instance in which the government takes liberty to infringe on property rights. If I told you that the government could seize your assets under the pretext that the property was used in criminal activity, you might feel somewhat uncomfortable. Let me increase the discomfort. What if the government could seize your assets without even charging you with a crime because the government is charging the property, not you? And on top of that mess, what if I told you that government is not obligated to return the property once your innocence has been proven? That sounds like a hallmark of a totalitarian country that has no regard for property rights. However, that is how civil asset forfeiture works in the United States (see Congressional Research Service report here).

This law sounds awful, so why would this ever become law in the first place? Supporters argue that it can be a powerful law enforcement tool by reducing profitability of crimes and removing assets used in criminal activity. These funds can also be used to protect the public interest and compensate victims of crimes. While this law might sound like it has noble intentions, it's amazing as to the havoc it can cause. Freedom Works actually released in June 2015 a grading of states based on their civil asset forfeiture laws (see map below), and it was hardly flattering.

For one, it's a nice way for law enforcement to generate profit (Williams et al., 2010). In a Februrary 2015 report, the Institute of Justice published findings about the IRS and civil asset forfeiture (Carpenter and Salzman, 2015). From 2005 to 2012, the IRS seized more than $242 million for structuring violations in more than 2,500 cases.  Keep in mind that out of this money, the IRS kept $123 million from 1,745 cases (Carpenter and Salzman, p. 10). Structuring violations don't even take into account the Department of Justice's two coffers for civil asset forfeiture funds, which amounts to over $3B (ibid., p. 11).

Presumption of guilt is insanely high in these cases. Why is it that the owner has to prove whether the property is "innocent?" Doesn't living in a free society mean having due process and that innocence is presumed until being proven guilty beyond all reasonable doubt? The Heritage Foundation, ACLU, Institute for Justice, and others recently released a multi-partisan pamphlet on the abuses of civil asset forfeiture. In the pamphlet includes a highly convoluted flow chart illustrating what an individual would have to do in order to reacquire their assets (see below).

Unlike in other cases, there is no right of "having a lawyer if you cannot afford one of your own" here. Most people couldn't navigate this sort of leviathan, which is why most of the funds seized remain in government possession.

Although the amount of money seized and the fact that the payouts of these seizures have increased by 250 percent in the past twelve years catch my eye, what is even more noteworthy is that civil asset forfeiture laws are a loophole around some of the most cherished aspects of our legal system: due process, innocent until proven guilty, ability to acquire legal representation. The deck is stacked against property owners and the abuse is ripe, as the Washington Post revealed in its scathing six-part exposé last year. When civil asset forfeiture is one of the very social issues upon which people across the political spectrum can agree, you know something must be done to help secure property rights in this country.




One reform that could be enacted is to charge the individual with a crime before going after their property. Here's something even better: shift the burden of proof to the government, like Montana recently did. For instance, let's raise the burden of proof from "preponderance of evidence" to "clear and convincing evidence" by amending the Civil Asset Forfeiture Reform Act. Also, let's return the presumption of innocence back to these cases. Why should the property owner have to fight tooth and nail to keep their property? Instead of wasting countless hours on cases in which the defendants are predominantly innocent, let's make sure that they're actually guilty of a crime. Another thought: instead of dumping the seized assets into police funds, we can dump them into a general state fund so the police aren't incentivized to increase their own coffers.  We also shouldn't allow for state and local law enforcement to use the Department of Justice's equitable sharing program to bypass reform initiatives. Given the complex nature of these cases, the government should fund counsel for defendants since they are currently not afforded that right. These are just some of the reforms that could be enacted to help bring integrity to our criminal justice system and make this country a beacon for ensuring property rights once more.