Civil forfeiture is a tool used by law enforcement that allows for the seizure and possible forfeiture of both real and personal property that might have been involved in various types of crimes. Also known as civil asset forfeiture, this practice has become highly controversial in recent years. Some states are beginning to change their civil forfeiture laws, and some say, with good reason. Civil forfeiture is a judicial process but it does not require a criminal conviction for assets to be seized and forfeited.
Modern civil forfeiture laws, which were originally designed for confiscating illegal money and property from drug kingpins and criminal organizations, are sometimes used by police to seize money and property from regular Americans with little evidence of a crime having been committed.
Civil Forfeiture Overview
Today’s civil forfeiture laws state that property itself can be guilty of crimes. Thus, the property should be seized and possibly forfeited even if the owner of the property does not face criminal charges. Experts say that civil forfeiture laws in the US for 200 years were mostly used regarding customs enforcement and admiralty.
But in the 1980s, Congress and state legislatures started to use civil forfeiture laws to fight drug trafficking and organized crime generally. Civil forfeiture became a regular tool used by law enforcement. Congress and state legislatures encouraged the use of it by allowing police departments to keep the proceeds of some property forfeitures.
Opponents of civil forfeiture argue that once law enforcement seizes private property, the civil proceeding differs a great deal from regular criminal law.
First of all, the civil forfeiture proceeding targets the property and not the owner. Forfeiture law at the federal level and in most states requires a preponderance of the evidence as the evidentiary standard. This is a much lower bar than the criminal law standard ‘beyond a reasonable doubt.’ So, prosecutors only have to prove that it is more likely than it is not that the property in question is related to a crime and thus should be forfeited.
Next, the prosecution does not need to prove that the owner of the property used it to commit a crime or was unaware of what it was used for. This is the normal way of things with criminal trials. In a typical civil forfeiture proceeding, it is up to the owner of the property to disprove these things by showing that he did not know of the illegal use of the property, or did not consent to it.
Last, the owners of the property in these cases do not have a guaranteed right to an attorney. Thus, if the owner of the property does not have the money for an attorney, he must go through the complex process of retrieving his property on his own without legal help. In many cases, the cost of hiring an attorney is much more than the value of the property or currency that was taken. So, many defendants do not hire attorneys even if they can afford it.
There is a low chance of victory in many civil forfeiture cases. So, many people who are innocent of any crimes just walk away poorer. Most federal civil forfeiture cases never even make it to court. These are referred to as administrative forfeiture cases. The agency that seized the property and is going to gain financially from keeping it, is essentially the investigator, prosecutor and judge.
May civil forfeiture cases involve a person transporting a large amount of money in a vehicle. The assumption by law enforcement is that that money is due to dealing drugs. But there are many innocent reasons to have a large amount of cash on your person in a vehicle. It is possible that you won money in the lottery, are in the process of buying real estate and other valid reasons.
Civil Forfeiture and Equitable Sharing
After the federal forfeiture is finished, law enforcement can keep the proceeds from the cash seizure case and share it through a program that is called equitable sharing. This allows for the transfer of part of the proceeds to any local agency or state that helped directly in any acts that caused the seizure and/or forfeiture of the illicit property.
The Department of Justice and the Treasury Department both have equitable sharing programs. Since 2000, both of the agencies have given out $5 billion in revenues collected from civil forfeiture cases. This money can only be spent by the agency that seized it and only for purposes related to law enforcement. The funds are not to be controlled by local or state legislatures.
Thus, federal law is allowing and even providing an incentive for state and local law enforcement to go around state laws that try to reduce or outright ban civil forfeiture. This skirting of the law reduces the effectiveness of state level forfeiture reforms.
What May Be Forfeited?
Depending upon the nature of the crime, law enforcement can seize and forfeit a variety of property:
- Financial proceeds: The criminal proceeds, which can include anything that is of value that is gotten due to the crime occurring
- Facilitating property: Property that is used to make the criminal activity easier to do or more difficult to detect
- Property that was used: The property that was actually used to commit the crime
Under current federal forfeiture law, property is anything that is of value, including that which is tangible and intangible, and includes securities, rights, interests, claims and privileges. The key for law enforcement to seize property legally is that there needs to be evidence that it is connected to criminal activity, but the standard here is only the preponderance of the evidence. This gives law enforcement a considerable amount of latitude.
Why Is Civil Forfeiture Used?
Proponents of the practice say that there are important reasons that the practice is used to fight crime. They maintain that it is important to go after not just the person that committed a crime, but to go after the money that was generated from the illegal activity. Seen in this light, civil forfeiture takes away the major incentive for illegal activities, and it punishes the crook for his illegal conduct by taking away the illicit gains.
Law enforcement also argues that civil forfeiture is a good way to take away the tools of the trade from criminals. If the criminal has his property and money taken away, it is difficult for him to continue to engage in criminal activity.
Also, police argue that civil forfeiture is useful to protect and benefit people who are hurt by crime. This policy has been used to seize drugs and drug trafficking equipment at crack houses, which are a threat to the public health. The real estate that has been seized has been turned over to nonprofit organizations and then used to help the neighborhood to develop. Forfeited property also has been used to return billions of dollars to people who have been hurt by white collar crime.
Civil Forfeiture Reforms at State Level
In the last several years, there have been several states that have initiated civil forfeiture reform bills that attempt to restrict the ability of local and state law enforcement to transfer property from civil forfeiture to the federal government, or to obtain any revenues from the federal government for this purpose.
The governor of New Mexico in 2015 passed a forfeiture reform bill. It officially abolished civil forfeiture in the state. As of the date the bill was passed, prosecutors have to get a criminal conviction before any property can be forfeited. But a conviction by itself does not always result in the property being forfeited. The state also has to show through clear, convincing evidence that the property owner had knowledge of any crime that led to the property being seized.
This new law also ended the forfeiture funding feature. Today, any proceeds that are derived from seizure and forfeiture of property has to be put into the general fund for New Mexico.
The governor of Michigan signed seven reform bills into law that addressed civil forfeiture. Overall, the reforms are fairly modest when compared to other states.
The new laws require new reporting requirements for law enforcement agencies that engage in civil forfeiture. Before the reforms, the law in the state only required that reports be filed for drug forfeiture cases. Now, all Michigan agencies have to track all of the cases where seizure of property is involved.
The governor signed the state’s reform law into effect in May 2014. Now a criminal conviction is required for seized property to be forfeited. After the conviction is gotten, the state must show ‘clear and convincing evidence’ that the property was used in a crime or is proceeds of a crime. Experts say that these reforms are fairly limited in scope; for example, the burden of proof continues to be on the innocent owner to prove that he did not know that the property was being used illegally.
The Nebraska law that was passed soon after the one in New Mexico also requires a criminal conviction for property to be forfeited. This is an essential abolishment of civil forfeiture in Nebraska. Property can still be taken and forfeited, but the state has to obtain a criminal conviction. It also has to show clear and convincing evidence that the property that is being forfeited was used in criminal activity.
The law also reduces the ability of law enforcement to get around the new law by simply transferring property into the hands of the federal government. These transfers only can occur if the property that was taken is more than $25,000 in value.
The state passed a civil forfeiture reform law on April 1, 2016. Under the new directive, the state has to prove a case beyond a reasonable doubt, which is the same standard that criminal cases require. This is a big step up from the previous ‘clear and convincing evidence’ standard. Also, the state needs to prove that the person had knowledge of criminal activity that was taking place. This law is intended to prevent an innocent third party from being stripped of their property.
This law does not require a criminal conviction but it does require in most cases that an arrest is made before the seizure of property takes place.
Their law was passed on July 1, 2015, and it states that all civil forfeitures must go through the following process:
- Property owners have to be convicted of a crime for the property to be forfeited.
- The state has to offer clear and convincing evidence that the property in question was used as part of the criminal offense, or is part of the proceeds of the offense.
The New Hampshire legislature adopted its new law on June 1, 2016. Like some other states, it is now required to obtain a criminal conviction before the state can seize property.
Once a conviction is gotten, the state has to prove that the property owner consented to a crime being committed. Thus, the property owner does not have to prove that he is innocent in court. The standard of proof was raised to ‘clear and convincing,’ which is higher than the old ‘preponderance of the evidence’ standard.
Reform Efforts Are Ongoing
As civil forfeiture has undergone increasing scrutiny in the last decade, it is clear that some states are reducing its use and passing new legislation to put the burden of proof on the government. Some of the above states have abolished civil forfeiture in its entirety, while others are using a more incremental approach.
It seems clear that civil forfeiture does have many legitimate uses to deter criminals by taking away their property. But care needs to be exercised that innocent third parties are not deprived of their property.
- Overview of Recent State Level Forfeiture Reforms. (2017). Retrieved from http://www.heritage.org/crime-and-justice/report/overview-recent-state-level-forfeiture-reforms
- Reid, B. Overview of Civil Asset Forfeiture and Recent Cases. (2013). Retrieved from https://www.huffingtonpost.com/brad-reid/civil-asset-forfeiture-ch_b_3745209.html
- Civil Asset Forfeiture Overview. (2012). Retrieved from https://www.americanbar.org/publications/blt/2012/06/02_dery.html