Civil Asset Forfeiture and its Destruction of Legal Transparency

Robert Howard, aged 43, is a police officer in Hillsdale, Missouri. He earns $10.50 an hour working at the local police department. With innumerable overdue bills and thousands of dollars of debt, Howard has had serious difficulty making ends meet for his wife and child. He complained to NBC News in 2014, “This is not what I expected. I thought being a police officer was a really good job.” Still worse is that other police officers working just towns away in the Ferguson department, for example, are earning twice the amount he is.

On the other hand, police officers in 42 other states across the country have a different outlook—they earn specialized “bonuses” for their services. For example, in Hunt County, Texas, officers regularly score personal bonuses of up to $26,000 a year. In Suffolk County, New York, the police department has distributed a total of $3.25 million in bonuses since 2012.

The splurge money comes from civil asset forfeiture. Civil asset forfeiture laws allow the government to permanently take property away from someone on the basis that the property is associated with a crime—regardless of whether the person in question has ever been convicted of a crime or even arrested for any offense. Worse yet, attempts to retrieve lost property are virtually nonexistent. In civil asset forfeiture cases, the property's owner must prove that their property is not connected to a crime. In these cases, there is no constitutional right to an attorney and a lawyer must be hired; in total, the costs from hiring a lawyer and paying court fees often dwarf the value of the property they want to retrieve, and because of these complications, efforts for retrieval are almost always abandoned. In fact, on a federal level, nine out of 10 asset forfeitures go uncontested.

Naturally, the forfeiture laws are eagerly enforced. Indeed, police and prosecutors can retain anywhere from 45 to 100 percent of forfeiture proceeds—a clear incentive to seize. Unfortunately, their enthusiasm is most often commensurate with a consequent deterioration in transparency. From disproportionate targeting of poor and minority-dense communities to embezzlement and fraud, all too suspiciously, it seems that law enforcement officers ironically find themselves as defendants in court more often than the victims of their seizings.

For example, in 2017, Virginia Deputy Frank Michael Pearson was convicted of embezzling more than $229,000 in asset forfeiture funds. In another instance, Wagoner County Sheriff Bob Colbert and Deputy Jeff Gragg were indicted on three felony counts, including bribery and extortion, when they took a bribe from a suspect to drop his case and quietly move the seized assets into the asset forfeiture fund. According to Forbes, in some ridiculous cases, like in Texas, district attorneys have even used embezzled forfeiture funds on “casino visits, a vacation to Hawaii, and a margarita machine.”

But infringements of law disproportionately target poorer areas and people of color. To make matters worse, despite needing their assets the most, these individuals are the least able to take on the costs of asset retrieval.

For one, motorists who are immigrants, low-income, or of color are pulled over on highways and traffic stops at a higher rate than those who are not, where they have had their cash seized and have been intimidated to sign roadside waivers disclaiming ownership of their vehicles by leveraging criminal prosecution. In another instance, an elderly disabled woman in Michigan had the entirety of her savings seized by law enforcement. Despite there being no proof that they were connected to criminal activity, she was unable to challenge the seizure because she did not have a single penny to pay for legal fees. In Los Angeles, a taco truck owner had thousands of dollars seized despite no evidence of criminal activity; he initially challenged the seizure but had to drop the case, fearing that the proceedings would risk the deportation of his relatives.

Unfortunately, the future of curbing the abuse of asset forfeiture laws seems stark, because for the Trump administration, asset forfeiture revenue is essential. In January of last year, two congressional Republicans told the Associated Press that the administration had been looking at civil asset forfeiture funds to finance the border wall’s construction. The federal government’s forfeiture fund currently holds $3.7 billion in cash and over $7.6 billion in assets—a considerable boost to the Trump administration's border wall budget if the assets were to be liquidated. Furthermore, in order to help bolster revenue generation, Trump-nominated Attorney General Jeff Sessions, who resigned in 2018, rolled back a series of Obama-era curbs on civil asset forfeiture, strengthening the government’s power to seize cash and property. With Trump at the helm of the opposition, effective reform may seem impossible.

But hope remains. Statewide and popular support has skyrocketed over recent years; more than 30 states have enacted civil forfeiture reform since 2014, and eight of those states sharply restricted their agencies from participating in asset forfeitures. Two of those states—Nebraska and New Mexico—even abolished the practice entirely.

What's more promising is the unprecedented bipartisan effort supporting the abolition of asset forfeiture. In 2018, the House unanimously passed the RESPECT Act, which would restrict civil forfeitures by the IRS, and dozens of members of Congress have co-sponsored the Fifth Amendment Integrity Restoration (FAIR) Act and the DUE PROCESS Act, which would enact tougher safeguards for innocent property owners.

Despite all these bills having support from the House, because the Senate Judiciary Committee has never held a full committee vote, the bills were left untouched. That is, until January of last year, when Representatives Tim Walberg, Jamie Raskin, Thomas Massie, Tony Cardenas, Tom McClintock, and Bobby Rush reintroduced the FAIR Act, which would enact drastic reforms to civil asset forfeiture laws. With the rare support it has from both Republican and Democratic platforms, as well as a broad reform coalition of nearly two dozen organizations, including the Institute for Justice, the ACLU, the NAACP, and the American Conservative Union, the movement to bring justice to victims of property seizure seems to be near its completion.

The last time any significant reform took place for asset forfeiture was in 2000, under the Clinton Administration. It's high time for change—and all that's left is for Congress to seal the deal.