Pirates in America
How the government can take the property of innocent people and why our laws permit it
Civil forfeiture is a legal form of piracy, where the state and federal policing agencies can take your money and property without any charges being filed or arrests being made. It is a remnant of the colonial taxation and seizure powers of the Crown, receiving unprecedented power during the War on Drugs. The net income for state and federal policing agencies is measured in billions, all of which stems from seizing assets from Americans.
A weapon intended against criminal enterprises, civil forfeiture has left a trail of innocent victims since inception. In particular, the impact is most felt by minorities and the economically disadvantaged as they are most likely to reside in areas with a higher number of police searches and are the least likely to have the economic means to fight unjust seizures.
Curtailing civil forfeiture must be one of the central demands in the advocacy for policy reform. Like the issuance of no-knock warrants, civil forfeiture affords police agencies the ability to circumvent the bill of rights and exercise authoritarian levels of control over citizens. While some states have taken measures to pass laws that limit civil forfeiture, the majority of the country still finds itself at the mercy of this doctrine.
Civil forfeiture subverts due process
Civil forfeiture takes the expectation of due process and turns it on its head. It is a practice in which state and federal law enforcement officers can seize the assets from a person that is suspected of participating in criminal enterprises or if that person’s property is believed to have been used in criminal activity. The assets can be seized without the individual being charged and to retrieve the property, the owner would have to appeal the seizure and prove that the property was not involved in criminal activity.
Petitioning for the return of seized assets is a process that can take thousands of dollars and years to obtain a decision. During that time, the petitioner is fighting the government, who has a pecuniary interest in keeping a multi-billion dollar source of funds flowing into the state.
“An innocent woman lost several years of her life and a lot of her money. She has no recourse to correct this wrongdoing by the government except to continue her fight in court.” — Jarrett Skorup
Like its ugly cousin, no-knock warrant, civil forfeiture blossomed during the 1980’s War on Drugs. The process was geared towards curtailing drug trafficking, money laundering, and criminal enterprises within the United States. Unfortunately, the cost has been a complete trampling of our civil liberties.
“…civil forfeiture…is often criticized as an unconstitutional exercise of government power, in violation of the Fourth, Fifth, and Eighth Amendments, and as against a fundamental element of due process: the presumption of innocence.” — Cornell Law School, Legal Information Institute
Our constitution promises that a person is innocent until proven guilty. That the government cannot deprive somebody of life, liberty, or property without a fair application of the law. Civil forfeiture subverts those ideals and deprives Americans of their property without filing a single charge against them.
Civil forfeiture has a human cost and a disparate impact
In July of 2019, Robert Reeves’s 1991 Chevrolet Camaro was seized and held for seven months because he met with an individual on a construction site who was accused of stealing construction equipment, a crime that was unrelated to Robert or his vehicle. His vehicle was only returned after Robert was involved in a federal class-action lawsuit.
In 2017, Phil Parhamovich was pulled over for a routine stop when he was on his way to realizing a dream, to purchase his own music studio. The officers seized more than $90,000.00 from Phil’s trunk. Phil was never charged with a crime, he was not even arrested and was only returned his property after the story was published by vox, prompting lawmakers to act.
The cases that are least likely to gain publicity can be found in the poorer communities around this country, where drug enforcement is the greatest pretext for searches and seizures. When people do not have the means or resources to challenge the strong arm of the government, their stories fall by the wayside. Many of the voices that are not heard belong to minorities, that are the primary victims of the failed “War on Drugs.”
“In Philadelphia, where nearly 300 houses are seized annually, African Americans make up 44% of the population but 63% of house seizures and 71% of cash forfeitures unaccompanied by a conviction.” — Southern Poverty Law Center, October 30, 2017
“Stop and Frisk” faced harsh criticism after studies showed that blacks and Hispanics were disproportionately targeted by police officers. Yet, we still see that civil forfeiture is not only carried out but relied on for funding by police departments in predominantly black neighborhoods. The police departments in underfunded communities have a direct interest to tailor their drug enforcement practices towards asset seizure. When a traffic violation can be used as a pretext for what is essentially highway robbery, the optimistic intentions of civil forfeiture are irrelevant.
Civil forfeiture is not just a punitive measure, it is a source of funding
For the government to willingly cease civil forfeiture practices would be to act against its own interest. Government policing agencies have every incentive to support civil forfeiture because the seized assets flow right back into the state and federal agencies.
“The forfeiture funds of the DOJ and Treasury Department together took in nearly $29 billion from 2001 to 2014, and combined annual revenue grew 1,000 percent over the period.” — Institute for Justice
In recent years there has been a push to curtail the use of civil forfeiture. Currently, North Carolina, New Mexico, and Nebraska have abolished civil forfeiture and another fifteen states have instituted a requirement of a conviction in criminal court to forfeit most types of property. While state reforms are occurring, there are still loopholes that the government can use to circumvent the newer regulations. Equitable sharing is one such loophole, which allows state and local law enforcement to team up and seize assets under federal law rather than state law. As such, equitable sharing will circumvent state restrictions on civil forfeiture.
“Between 2000 and 2013, annual DOJ equitable sharing payments to state and local law enforcement more than tripled, growing from $198 million to $643 million. In all, the DOJ paid state and local agencies $4.7 billion in forfeiture proceeds from 2000 to 2013.” — Institute for Justice
There are several billion reasons for state legislatures to leave a federal back door in their statutory schemes. Moreover, even if the states pass stricter regulations against civil forfeiture, the federal government can still exercise its power to seize assets for federal issues. This is an issue that must be addressed on a federal level with direct guidance coming from our legislatures and the Supreme Court.
There is a promise in our Bill of Rights that the government cannot seize people or property without a warrant. That the system cannot deprive Americans of their due process rights and forcefully take assets from innocent people. We are all innocent before the law until proven otherwise. It is time that our government live up to these promises and dismantle antiquated, ineffective, and unconstitutional practices that smother life, liberty, and the pursuit of happiness.