Civil Forfeiture: Policing for Profit Violates Civil Rights

by C.J. McKinney

You’re a longtime restaurant owner who’s never committed a crime, but because you regularly deposit suspect amounts of cash in the bank, the IRS seizes your accounts. You’re a grandmother whose grandson sold a bit of pot on the street out front, so the police seize your house. You’re a young man on the way to buy a used car. When you’re pulled over for speeding, the cop writing you a ticket sees that you have $4,000 in cash in the car. He confiscates it, and there’s nothing you can do.

Welcome to the world of civil forfeiture, a dark corner of the justice system that allows federal, state and local authorities to seize, sell or keep the property of innocent people. The mere suspicion of criminal activity is enough to justify civil forfeiture – and over 80 percent of victims are never charged with a crime.

Ironically, because most victims of civil forfeiture aren’t actually guilty of a crime, it can be a long tough process to fight a seizure. An individual accused of a crime is (theoretically, at least) innocent until proven guilty, which means that they’re entitled to legal representation and other rights. But in an odd turn of legal sleight of hand, in most civil forfeiture cases, it’s not the person who’s suspected of a crime – but the property itself.

How’s that again?

Today’s civil forfeiture law is based on a legal fiction that has its antecedents in a medieval belief known as “deodand,” which held that inanimate objects could act independently to cause death and commit crime. That meant that things like wagons, anvils or cook pots could be tried in court for their offenses, like people.

That practice was handily co-opted in the earliest days of the country’s existence, when the government, desperate for revenue to run the newly born republic, used it to justify collecting customs fees from smugglers. Because they couldn’t actually try the owners of these ships, who most of the time were abroad, they used the old concept of deodand to seize the ships themselves and their cargos.

That’s why today’s civil forfeiture cases are “in res” (against a thing), which yields up some bizarre case titles, such as “United States vs. 750 Colfax Ave.” “State of Georgia vs. $47, 652.23,” or “State of New Jersey vs. One 1990 Ford Thunderbird.” And because the owners of the accused property haven’t’ themselves been named in a criminal complaint, the burden of finding a lawyer and covering legal costs falls on them.

Though the Founding Fathers happily used civil forfeiture to fund the government in those early days, the law wasn’t often directed at citizens. And with a few exceptions during the Civil War and Prohibition, civil forfeiture laws were largely ignored.

But that all changed in the 1980s, when the “War on Drugs” began to heat up and the government rediscovered civil forfeiture as a way to seize the property of people suspected of drug related activity. The practice got a major boost in 1984 when Congress established the Asset Forfeiture Fund that allowed federal agencies to keep, spend or sell the proceeds from civil forfeitures for their own use.

In the decades since, civil forfeiture cases have surged in virtually all states. In Arizona, the number of forfeitures increased by 400 percent in the years between 2000 and 2011. And Philadelphia seized 1172 properties and over $60 million in assets in 2013, earning the city the title “The Forfeiture Machine.”

Today, civil forfeitures are so frequent – and so egregious – that the Institution of Justice calls the practice “policing for profit.” Homes, cars, money and other assets seized in forfeiture cases have become a tidy source of revenue for government entities of all sizes – and cash and property seized during traffic stops and other street encounters may never make it out of the arresting officer’s pocket.

Mounting a defense against a civil forfeiture can be costly and time consuming, and it may not end with the return of the property anyway. After a hard-fought and lengthy battle, many victims are offered a settlement instead, usually for far less than the full value of the seized assets.

The consequences of civil forfeiture can be devastating. A number of civil right groups and legal coalitions have stepped up to help victims and press for an end to the practice. With its campaign “End Civil Forfeiture,” the Institute of Justice is partnering with the American Civil Liberties Union, People’s Law Centers and other civil rights groups to raise awareness about civil forfeiture and provide legal help.

The Institute for Justice has filed suit against the City of Philadelphia for violating citizens’ civil rights and is pursuing a number of cases on behalf of people like restaurateur Carol Hinders, whose business accounts were seized by the IRS because she made regular small cash deposits that raised red flags about drug trafficking.

For now, though, civil forfeiture is an entirely legal action. And even with the assistance of big guns like the ACLU, you’ll face an uphill battle against “policing for profit’ if your home, car or money ends up accused of crimes you didn’t commit.

Image: Flickr/bigbjörne

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