In the United States, civil forfeiture (also called civil asset forfeiture or civil judicial forfeiture) is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash, a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself. Civil forfeiture is not considered to be an example of a criminal justice financial obligation.
Proponents see civil forfeiture as a powerful tool to thwart criminal organizations involved in the illegal drug trade, since it allows authorities to seize cash and other assets from suspected narcotics traffickers. They also argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is, directly converting value obtained for law enforcement purposes by harming suspected criminals economically while helping law enforcement financially.
Critics argue that innocent owners can become entangled in the process to the extent that their 4th Amendment and 5th Amendment rights are violated, in situations where they are presumed guilty instead of being presumed innocent. It has been ruled unconstitutional by a judge in South Carolina. Further, critics argue that the incentives lead to corruption and law enforcement misbehavior. There is consensus that abuses have happened but disagreement about their extent as well as whether the overall benefits to society are worth the cost of the instances of abuse.
Civil forfeitures are subject to the "excessive fines" clause of the U.S. Constitution's 8th amendment, both at a federal level and, as determined by the 2019 Supreme Court case, Timbs v. Indiana, at the state and local level. A 2020 study found that the median cash forfeiture in 21 states which track such data was $1,300.
History
Legal origins Civil forfeiture in the United States has a history dating back several hundred years, with roots in British maritime law. In the mid-1600s, when what would become the United States was a British colony, the British Navigation Acts were enacted. These laws required ships importing or exporting goods from British ports to fly the British flag; ships that failed to do this could be seized regardless of whether the ship's owner was guilty of any wrongdoing. It was easier to seize a vessel than try to apprehend the owner, who may be on the other side of the ocean.
During the later Colonial years, forfeiture practices by Crown officials using writs of assistance were one of the many activities that angered colonists, who saw the writs as "unreasonable searches and seizures" that deprived persons of "life, liberty, or property, without due process".
After the American Revolution, the early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the Republic. Seizures allowed government to confiscate property from citizens who failed to pay taxes or customs duties. The Supreme Court upheld these forfeiture statutes in situations where it was virtually impossible to get hold of guilty persons on the high seas while possible to get hold of their property. As explained by Supreme Court justice Joseph Story:
During much of the 19th century, little attention was paid to forfeiture laws.
Prohibition era
The US Government used forfeiture during the Prohibition years (1920–1933). Police seized vehicles, equipment, cash and other property from bootleggers. When Prohibition ended in 1933, much of the forfeiture activity ended as well. Modern forfeiture was an "infrequent resort" until the last few decades.
War on drugs (1980–present) Since 1980, the war on drugs has led to substantially increased civil forfeiture by federal, state, and local government. The market for illegal drugs in the United States is large: the Drug Enforcement Administration estimates the annual profit from selling illegal drugs is $12 billion. However, it has become harder for criminal organizations to launder drug money by means of the financial system; drug cartels have thus preferred bulk cash payments. The initial intent behind increased civil forfeiture was thus to use forfeitures as a weapon against drug kingpins, similarly to how forfeiture was used to fight alcohol trafficking during the Prohibition era.
According to journalist Sarah Stillman, a major turning point in forfeiture activity was the passage of the Comprehensive Crime Control Act of 1984. This law permitted local and federal law enforcement agencies to share seized assets. According to Stillman, civil forfeiture allowed federal and local governments to "extract swift penalties from white-collar criminals and offer restitution to victims of fraud". From 1985 to 1993, authorities confiscated $3 billion of cash and other property based on the federal Asset Forfeiture Program, which included both civil and criminal forfeitures. The methods were supported by the Reagan administration as a crime fighting strategy:
The politics of civil forfeiture were somewhat unusual. The federal forfeiture laws were introduced and pushed through Congress by Republicans in the 1980s, with some Democrats supportive and some critical. Additionally, some libertarian-leaning Republican members of Congress have been critical of civil forfeiture, considering it offensive to property rights. Civil liberties organizations like the American Civil Liberties Union have long been opponents of civil forfeiture. A common criticism of civil forfeiture is that it adversely affects minorities and people from low-income communities (whose seizures are typically less than $500).
Forfeiture was used for purposes other than trying to discourage illegal drug activity, such as attempts in New York City to discourage drunk driving. Forfeiture rules were used to confiscate cars of intoxicated motorists. In such instances, there are two types of cases: a criminal case against the drunk driver as a person, and a civil case against the property used to facilitate the drunk driving, specifically their car. Critics contend that the punishment can be "deemed out of proportion with the offense"; for example, after a drunk driver is arrested and convicted and possibly imprisoned, is it proper to punish him or her additionally by civil forfeiture means by confiscating a $50,000 car? Civil forfeiture has been used to discourage illegal activities such as cockfighting, drag racing, gambling in basements, poaching of endangered fish, securities fraud, and other illegal activity.
Courts helped set up the legal framework to help law enforcement stem the drug tide while sometimes trying to rein in abuses. A 1984 law set up the equitable sharing arrangement in which state and local police can share the seizures with federal agents. While the 1993 Supreme Court case Austin v. United States ruled that a forfeiture could be considered as an excessive fine, the court upheld the principle of civil forfeiture generally. A 1996 Supreme Court decision ruled that prosecuting a person for a crime and seizing his or her property via civil forfeiture did not constitute double jeopardy, and therefore did not violate the Constitution. However, in 1999, the Supreme Court ruled that civil forfeiture was not permitted if the amount seized was "grossly disproportional" to the gravity of the offense.
Legislatures played a role as well. Since the 1990s, the number of federal statutes permitting government forfeiture doubled from 200 to 400. In 2000, lawmakers passed the Civil Asset Forfeiture Reform Act, or CAFRA, which stipulated protections for individuals and increased the level of proof required. Critics said that the new guidelines did not require poor persons to have free access to legal services. CAFRA guidelines suggest that if a claimant wins a civil-forfeiture case, that some of the legal fees paid to recover the property are partially payable by the government. CAFRA was supposed to raise government's burden of proof before seizing property. CAFRA meant if government loses a forfeiture challenge, government must pay the victim's attorney costs, but often victims are unaware of this fact, so they fail to hire lawyers thinking the cost will be prohibitive.
Police forces heeded instruction from a law enforcement consultant named Joe David who had an "uncanny talent for finding cocaine and cash in cars and trucks", according to one report. Officers trained in David's so-called Desert Snow stop-and-seizure techniques raked in $427 million from highway encounters during a five-year period. A contract allowed David's consulting firm to keep 25% of the seized cash.
But when innocent owners were sometimes ensnarled in seizure proceedings, it spurred criticism. In the early 1990s, San Francisco-based defense attorney Brenda Grantland organized a group called Forfeiture Endangers American Rights (which spells the letters FEAR), with branches in New Jersey, Virginia, California, and Massachusetts. Debate about reforming civil forfeiture procedures happened in the late 1990s but after public scrutiny died down, lawmakers quietly relaxed the reforms at the behest of police groups and prosecutors without much public debate.
Civil forfeiture was used successfully on many occasions. For example, it was used to seize assets by corrupt foreigners, such as against Teodoro Nguema Obiang Mangue, who stole money from the African nation of Equatorial Guinea and was convicted. Overall, the pattern in recent decades has been a substantial increase in forfeiture activity. According to government records, Justice department seizures went from $27 million in 1985 to $556 million in 1993 and $4.2 billion in 2012.
In 2015, Eric Holder ended the policy of "adoptive forfeiture", which occurred "when a state or local law enforcement agency seizes property pursuant to state law and requests that a federal agency take the seized asset and forfeit it under federal law" due to abuse. Although states proceeded to curtail the powers of police to seize assets, actions by the Justice Department in July 2017 have sought to reinstate police seizure powers that simultaneously raise funding for federal agencies and local law enforcement.
Legal background
Civil vs criminal forfeiture AspectCivilforfeitureCriminalforfeitureJurisdictionIn remIn personamBurden of proofPreponderance of evidenceBeyond a reasonable doubtCourt can take account of the defendant's 5th Amendment rightsYesNoAssets returned if:Owner proves innocenceProsecution cannot prove guiltCase law exampleUnited States v. Forty-Three Gallons of WhiskeyUnited States v. John Doe
Civil procedure cases generally involve disputes between two private citizens, often about money or property, while criminal procedure involves a dispute between a private citizen and the state, usually because a law has been broken. In legal systems based on English common law such as that of the United States, civil and criminal law cases are handled differently, with different tests and standards and procedures, and this is true of forfeiture proceedings as well. Both civil and criminal forfeiture involve the taking of assets by police.