Government’s Billions from Seizing Americans’ Property: Civil Forfeiture Explained
Police Raided Her Apartment and Seized Her Money—But She Was Never Charged with a Crime
In October 2020, police officers raided Cristal Starling’s New York apartment suspecting her then-boyfriend of drug dealing. Despite no suspicion or charges against her, the police seized $8,040 of her hard-earned cash. The shocking part? They didn’t have to return it.
Through a process called civil forfeiture, law enforcement can seize property without any obligation to return it. In this case, the money was transferred to the Drug Enforcement Administration (DEA), where it remains.
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Meanwhile, Ms. Starling’s ex-boyfriend was acquitted after a jury trial.
“Criminal forfeiture happens after a criminal conviction,” explained Kirby Thomas West, an attorney from the Institute for Justice (IJ). “Civil forfeiture, on the other hand, happens often when there’s no criminal process at all.”
IJ, a national nonprofit law firm, is fighting to end government abuse of power and protect constitutional rights. They consider civil forfeiture to be one of the greatest threats to private property rights.
“We are leading the charge to restore due process and respect for property rights. No one should lose their property without being convicted of a crime,” states IJ on its website.
In civil forfeiture cases, a person’s property can be taken without any arrest or charges. The burden of proof falls on the property owner to prove their innocence, rather than the prosecutor proving guilt.
“Unlike a criminal case, where you would go to court and have the right to be presumed innocent until proven guilty, in the forfeiture context, your property is presumed guilty until proven innocent. So, you have to prove that the ‘innocent owner’ defense applies to you,” said Ms. West.
Unfortunately, most seized property ends up in administrative forfeiture, a subset of civil forfeiture. This process is complicated, lacks the right to counsel, and often results in property being taken by default.
Ms. Starling, unable to afford a lawyer, tried to regain her money on her own but missed a deadline for her petition. However, after appealing to the IJ, the 2nd U.S. Circuit Court of Appeals ruled that her case could be heard before a judge, recognizing the injustice of losing money over a missed deadline.
“Today’s decision will have important consequences for civil forfeiture victims who are trying to navigate complicated forfeiture procedures, often without help from a lawyer,” said IJ Senior Attorney Rob Johnson in a press release. “If the government wants to take your money, they should have to prove you did something wrong—not trip you up with legal procedures.”
Ms. Starling expressed her frustration, stating, “Nobody should have to fight this hard just to keep what’s theirs.”
The Constitution and Forfeiture
Civil forfeiture has historical roots in maritime crimes and piracy, where it was used to punish individuals outside of law enforcement’s jurisdiction. However, today it is being used in cases where the alleged criminal could be brought to court. This raises questions about the constitutionality of civil forfeiture.
The Fifth Amendment of the U.S. Constitution guarantees the right to a prompt hearing if the government intends to keep an individual’s property through forfeiture. According to Ms. West, this makes civil forfeiture illegal. However, the issue is still being litigated in the courts.
Billions Seized
The reason civil forfeiture continues to be used by the government and law enforcement agencies is its profitability. Between 2000 and 2019, a combined total of $68.8 billion was seized through forfeiture by states and the federal government, according to IJ’s “Policing for Profit” report. However, this figure likely underestimates the true scope of forfeiture.
Law enforcement agencies are incentivized by the proceeds of forfeitures, and there are often few limits on how they can use the funds. Examples include purchasing luxury items and funding travel expenses.
While some states have enacted legislation to protect citizens from civil forfeiture, law enforcement agencies can bypass these constraints through “equitable sharing” with the Department of Justice (DOJ). This allows them to receive a significant portion of the proceeds, making state reforms ineffective.
In 2022, states deposited almost $1.8 billion to the DOJ’s forfeiture fund, with California, New York, Michigan, the District of Columbia, Florida, and Texas being the largest contributors.
The Case for Forfeiture
The DEA argues that asset forfeiture is an effective tool to combat drug trafficking and money laundering. It claims that seizing the profits of crime weakens criminal enterprises, punishes criminals, and aids in dismantling criminal organizations.
In fiscal year 2022, the DEA seized over $441 million in assets and transferred over $203 million to the DOJ’s forfeiture fund. The DOJ also uses recovered assets to compensate victims of crimes.
However, critics like Ms. West question the effectiveness of civil forfeiture in disrupting major drug cartels. The data shows that the median forfeiture amounts are relatively low, and crime rates have not increased in states that have abolished civil forfeiture.
While criminal forfeiture is widely accepted as constitutional and appropriate, the constitutionality of civil forfeiture is still being debated.
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