opinion

ACLU, Heritage Foundation agree: Reform forfeiture laws

When Victor Guzman and his brother-in-law, Jose Sorto, were pulled over for speeding on Interstate 95 near Richmond, Va., the pair expected a ticket. Guzman, a native of El Salvador, had been entrusted with $28,500 by his church to handle purchases for his parish, including buying land in El Salvador. He and Sorto were driving to Atlanta that day to meet the landowner, money in hand.

But the money was soon in police hands. Despite finding no drugs or evidence of illegal conduct, Virginia troopers seized the cash under civil asset forfeiture laws. The only justification given was that the pair was acting suspiciously because Guzman, for whom English is a second language, and Sorto, who speaks no English, had made statements the officers considered inconsistent.

The Heritage Foundation and the American Civil Liberties Union seldom see eye-to-eye on an issue, but our two organizations both seek to reform a broken civil forfeiture system that regularly violates property and civil rights, and undermines the integrity of our justice system.

Forfeiture in America dates back to the 18th century when Congress used forfeiture to enforce customs duties when a ship or cargo owner was outside the reach of U.S. courts. Congress found a new use for civil forfeiture as part of the “War on Drugs,” targeting the assets and profits of drug organizations.

Over time, the reach of civil forfeiture expanded to encompass more than 200 federal crimes and a host of state crimes, enabling law enforcement to seize property from virtually anybody without a conviction.

Incredibly, suspicion alone is often deemed sufficient to strip citizens of their homes, cars, and life’s savings. So long as law enforcement officials allege the property was used in the commission, or is the result, of a crime, it can be seized, even absent probable cause to arrest the owner.

To win back seized property, innocent owners must navigate a tortuous legal landscape. There is no presumption of innocence or right to counsel; property owners must, in effect, prove their own innocence without the benefit of counsel if they cannot afford one. Most seizures are never challenged, owing to the high cost and low probability of victory.

Many forfeiture cases never even see the inside of a courtroom. Through a process known as administrative forfeiture, the seizing agency adjudicates its own cases. Property owners fighting that battle seldom prevail.

Meanwhile, law enforcement agencies are generally permitted to retain the proceeds from their forfeitures, and spend this money with little to no oversight.

And through the federal equitable sharing program, state and local law enforcement agencies can circumvent state laws designed to protect property owners. If a sheriff’s office or police department transfers a forfeiture case to the federal government, it can reap up to 80 percent of the resulting proceeds.

The effects of this perverse profit incentive are astounding. Since 2001, through equitable sharing, nearly 62,000 motorists have been stopped and subjected to warrantless searches. Property seizures in these stops total $2.5 billion.

Clearly, civil forfeiture has exceeded its original bounds. Several states have passed sweeping reforms, and others may follow suit this year. In Congress, Sens. Charles Grassley, R-Ia., and Rand Paul, R-Ky., have made forfeiture reform a top priority. But elected officials must continue to hear from us to ensure that civil asset forfeiture reform happens.

The steps we would recommend include barring law enforcement agencies from retaining the proceeds of their own seizures; abolishing the equitable sharing program; guaranteeing indigent property owners an attorney; and honoring the presumption of innocence in spirit and practice.

Our respective organizations support these principled measures. We differ on a wide array of policy matters, but on this issue, we speak with one voice: It’s time for civil forfeiture reform.

John Malcolm is the director of the Edwin Meese III Center for Legal and Judicial Studies, and the Gilbertson Senior Legal Fellow at The Heritage Foundation. Susan Herman is the president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School.