Civil asset forfeiture is proof the way we talk about regulation is wrong. It isn’t the amount of regulation that matters. What matters is the way we regulate.
Created as a tool to go after organized crime and those who might use their wealth to elude the police, civil asset forfeiture gives police at all levels (local, state, and federal) the opportunity to seize assets they believe are part of a crime.
Sounds good, right? Give the police what they need! we say. But this seemingly innocuous idea is not so innocent in practice.
Civil asset forfeiture is dangerous.
Civil asset forfeiture is really a patchwork of laws granting both individual officers and departments nearly unlimited access and justification for taking the property of anyone at any time.
States and federal agencies intend these laws to help them go after drug dealers and thieves. Or as another way of giving police every “reasonable” tool to add to their tool box.
But for policing drugs, racketeering, and fraud, civil asset forfeiture is about the brain-deadest way to do that. It’s the bluntest mallet intended to slice a tomato. Or its the meat tenderizer so shaved down, anyone reaching into the drawer would think it’s intention is to cut the meat, not squish it.
In short, civil asset forfeiture is not the answer. But it’s worse than that.
The “freedom” to seize assets is about the most unAmerican thing I can think of.
And the only honest response any of us should have is to seek reform.
8 Reasons we must reform civil asset forfeiture
We need to reform the practice of civil asset forfeiture for a variety of reasons.
1. It is not practiced as warranted seizure.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”.
The problem is that these laws rarely require the search be reasonable or with a warrant. And worse, case-law gives police officers far more leeway to determine for themselves what is reasonable than the framers probably intended.
2. It is unethical.
It’s unethical to give the police the unfettered opportunity to seize property, not only for drugs or theft, but because they can claim anything is. With such an unrestricted tool, it easily becomes an instrument of abuse. All they need is the incentive to use it that way. Such as allowing them to keep what they seize.
3. It is regularly abused throughout the country.
Regardless of the jurisdiction, and often aided by federal assistance through “equitable sharing,” civil asset forfeiture is used and abused in every state in the country. This is precisely because they are allowed to keep it. They have incentive to seize assets because they are allowed to keep or sell the assets seized.
And yet this is just one of the ways police departments bolster their budgets. As much as it is unethical to seize property unrelated to a crime, it is even more unethical to seize it to keep it.
4. It violates the foundational principles of our criminal justice system.
The foundation of our criminal justice system is restoration. We tend to think of our criminal justice system as being about punishing those convicted of a crime. But that is only half of its property and intention.
The justice system’s greater cause is to restore the community to wholeness. Punishment is a means of dealing with those who have broken community. But it doesn’t end there. It’s also about restoring them to the community, if possible. And restoring those who have been violated, if possible.
If civil asset forfeiture were in line with those principles, no assets seized would ever go to benefit a police department. But they do. A lot.
Instead, it would go entirely to the victims of crimes and the rehabilitation of criminals. We would see more healing in the victims and less recidivism.
And since the only assets seized would be directly related to the abuse, the convicted would still have assets when they got out. Unfortunately, this is nothing like its current practice.
5. It makes the police look an awful lot like organized crime.
Rather than deal with those civil asset forfeiture intends to catch, it’s used in the real world to steal stuff from people. It’s an excuse to steal even from those who have committed no crime.
It’s used as leverage against a suspect. And in a famous case, used to seize over one hundred cars from innocent bystanders over a bad liquor license.
The financial restraints on police departments are real. As are systemic problems which encourage questionably legal behaviors. Quotas for arrests or tying advancement to arrest numbers encourages officers to go after people they can convict more than the crimes.
These different incentives have a unifying effect of eroding policing in our communities. Not just trust in the police, but in the quality of policing. So police departments are being pushed by legislators and their own internal systems to look less like defenders of the common good and more like the criminals they are called to pursue.
6. It is the wrong tool for the job.
It is unrestrained power given for a narrow, targeted purpose. Like using birdshot in a shotgun when people asked for a sniper rifle.
Civil asset forfeiture is an extraordinarily broad legal idea giving incredible freedom for an incredibly specific purpose. Freedom which seems unconstitutional to the average citizen and which violates the freedom of the same.
7. It imbalances “freedom to” and “freedom from”.
Yes, support for institutions and regulations is at a low point. But we need to balance between the two. For this balance produces the most freedom and protection to the wider community.
Much of our political division seems to unbalance the two. And the kind of freedom our institutions and regulations bring us suffers.
Police need regulations to protect themselves and the citizens they pledge as public servants to protect. They need to be held accountable for their actions just as much as the population as a whole. Like those terrible religious freedom laws, civil asset forfeiture gives an institution the freedom to deny the freedom of others.
Any act to provide one with a “freedom” to do something must be measured by examining whose freedom is violated. And what that effect has on the common good.
8. Civil asset forfeiture must be used for its intended purpose.
The seizing of assets needs to be tied to the crime of which a person is convicted. But this is rarely the case for most forfeitures. Despite TV procedurals, these laws don’t target the lowest of scum. They aren’t used to bring down the mob or get drug dealers off the street.
Officers use it at traffic stops and when responding to 911 calls.
We might want to think of it as a cop seizing a computer in a child pornography sting op. But that isn’t this. This is coming into that house and taking everything of value. Only the cop doesn’t put it into evidence, the department instead sells it, and deposits the cash in the bank.
Or worse, they do that very thing to a person they never charge with a crime.
So what are the solutions?
There are so many ways civil asset forfeiture is a problem, we may struggle to see how to fix it because we can think of dozens of individual solutions. But there are two streams of influence involved in how civil asset forfeiture is practiced.
- The lightly regulated seizing of property.
- The lightly regulated keeping of property.
And when we name these two problems, we might see how we can better address them.
Fixing the problem.
Here are four ways we can grapple with these two streams of influence.
1. Divorce the seizing of assets from the keeping of assets.
If we isolate the two streams from each other, we can both better regulate how assets are seized and eliminate the profit motive from the equation. And by taking the keeping of property away from the police department, then we can set up an independent agency which can best determine how to bring restoration to the community and the persons involved.
2. Eliminate the profit motive.
If we remove the ability for a police department to profit from the seizing of assets, they are more likely to use forfeiture in only those cases which warrant it. And by more properly funding our police departments and reducing the use of expensive SWAT and military equipment, we can eliminate the use of asset forfeiture as a fundraiser.
3. Rewrite local, state, and federal guidelines to narrow the scope of civil asset forfeiture.
Legislators can name who the law is targeting, bind it to certain crimes, and restrict the keeping of those assets only to get a conviction. While the court has some strange jurisprudence around how it treats seized assets under the law, directed legislation would bring more integrity and trust to the system.
4. Advocate for neighbors in your local community who may be the victim of civil asset forfeiture.
Right now, few of us know who in our communities have had property and assets seized without cause. And those who have often face high legal costs which make such claims impossible to adjudicate. This makes true restoration nearly impossible in many cases. Setting up legal funds and access to free legal counsel would reduce the seizing of assets unrelated to crimes.
To improve these bad laws and legal principles, we all need to know how they are effecting people all over the country. And how they could directly affect us, too. Then we might move toward the reforms we most need.