Over the past six weeks, lawmakers in more than a dozen states have filed legislation to overhaul or eliminate civil asset forfeiture, a controversial law enforcement tool that lets police seize cash and property from people who haven’t been convicted of a crime ― and in many cases, haven’t even been charged with one.
The wave of action touches both red and blue states, and suggests growing political and public opposition to the practice. Both the Republican and Democratic party platforms included civil forfeiture reform in 2016, another sign that it’s reaching the mainstream of U.S. politics.
“It’s absolutely a bipartisan issue,” said Robert Johnson, an attorney at the Institute for Justice, a libertarian public interest law firm that argues forfeiture should require a criminal conviction. “Everybody realizes that the right to hold your property and the right to not have the government take your property for no good reason is something that all Americans hold dear.”
Civil forfeiture has roots in the 17th century, when the British crown used it to seize pirate ships and smuggled goods from foreign owners or fugitives who weren’t present to stand trial. In the United States, police began using it during the Prohibition era to impound and resell bootlegging vehicles, and expanded departments’ reliance on civil forfeiture during subsequent wars on organized crime, drugs and terror. There have been several failed Supreme Court challenges regarding the practice.
Like many of law enforcement’s most controversial tactics, the modern explosion of civil forfeiture is a product of the drug war. Officers can target the assets of suspected drug dealers — including cash, cars, property and electronics — even when they don’t have clear evidence of a crime.
Some in the law enforcement community believe going after a drug ring’s finances can be more disruptive than making lower-level arrests. And with criminal syndicates evolving, police say targets may no longer carry contraband along with cash. Police now confiscate hundreds of millions of dollars in cash and property through civil forfeiture each year, all from people merely suspected of wrongdoing. Large portions of that money end up in back in department coffers.
This expansive power leads to controversy. When sheriff’s deputies in Muskogee County, Oklahoma, made a traffic stop last year and found more than $50,000 in cash in a car, they seized it as “drug money” ― even though they had no evidence the owner was involved in the drug trade. The driver, the manager of a Christian rock band from Burma, then had to fight in court to get it back.
Defendants in civil forfeiture cases have no right to an attorney, as they would in criminal proceedings, because police are technically charging the property, not the owner. But the driver in the Oklahoma case obtained pro bono counsel from the Institute for Justice, and after press coverage revealed the cash had included the band’s ticket sales and donations they planned to make to an orphanage, the department returned the money.
Civil forfeiture creates a financial incentive to go after the financial target rather than the real criminal. Robert Johnson of the Institute for Justice
But the Institute for Justice saw the seizure as a function of law enforcement’s reliance on civil forfeiture for revenue. Weak state laws and poor oversight have given rise to a system critics call “policing for profit.” They say this fundraising impulse can lead officers to deprioritize public safety in favor of law enforcement activity that makes the most money for police and prosecutors.
“Civil forfeiture creates a financial incentive to go after the financial target rather than the real criminal,” Johnson said. “If you get rid of that financial incentive, you’re not hampering police, you’re freeing up police to focus on the things that they ought to be doing, rather than the need to bring in a source of revenue.”
This has led to well-publicized incidents of police sweeping up cash and other assets from innocent people. Critics say these abuses can disproportionately affect people of color and the poor, who are more likely to rely on cash, more likely to be stopped by police and less likely to have access to a quality legal defense. A 2015 American Civil Liberties Union report found that nearly 60 percent of cash seizures made by cops in Philadelphia were for amounts of less than $250. Data from other states also suggests police aren’t always going after drug kingpins.
There also are concerns about what happens to this money once it goes back to law enforcement. In 2015, an Oklahoma prosecutor was found to have paid off $5,000 in student loan debt with cash from a forfeiture fund, sparking accusations that some were using this money like a personal bank account. In other cases, police have spent forfeiture funds on equipment, training and salaries.
Oklahoma is among the 15 states that have introduced civil asset forfeiture reform measures this year. The lawmakers behind those bills want to join states like New Mexico, Florida, California and Ohio, which have passed similar legislation.
“Two years ago, the moment I introduced the bill, I was called a friend of ISIS and al Qaeda and organized crime and was told I was personally responsible for drug trafficking and mafia ties,” he said.
Loveless said he hopes the debate around his latest proposal will remain focused on the merits of the legislation, which eliminates civil forfeiture in Oklahoma entirely in favor of criminal forfeiture.
SB 585 would grant Oklahomans the right to a jury trial before the state can forfeit property, meaning they’d first need to be found guilty of a related crime. Additionally, the measure raises the burden of proof for forfeitures from “preponderance of the evidence” to “clear and convincing” evidence. Under that standard, the state would have to provide stronger proof during trial that the property it wants to take is connected to that crime.
Loveless’ bill also requires agencies to maintain records of all seized property, and includes a measure to prevent Oklahoma police from circumventing state forfeiture law. By working with federal law enforcement agencies through a program known as equitable sharing, police in many states can seek forfeiture through more lenient federal statutes. This process has weak protections for property owners, and typically returns more of the funds back to local law enforcement.
State and local law enforcement agencies have made billions of dollars off equitable sharing since 2000. But under SB 585, the loophole would only apply to forfeitures valued at over $50,000.
Loveless said he’s seen increasing interest in civil forfeiture among both lawmakers and the public.
“We have 30 new freshman members in the state House and 13 new senators in the state Senate and all of them have been following forfeiture because it was a campaign issue,” he said.
Bills in Alaska, Hawaii, Illinois, Indiana, North Dakota, Texas, Washington and Wisconsin all seek to do away with civil forfeiture by tying the process exclusively to criminal convictions. Many proposals also raise the burden of proof for forfeitures, implement stricter timeframes for authorities to pursue forfeiture action and close the equitable sharing loophole by limiting property that can be pursued through federal forfeiture.
Most of the legislation also seeks to improve transparency in state forfeiture proceedings. An Institute for Justice report published last year determined most state law enforcement agencies fail to keep even basic records of seizures.
The campaign for civil forfeiture reform still has powerful opponents. Lawmakers in Kansas quickly put the brakes on a proposal this month that would have abolished the practice. Law enforcement groups in Texas have come out against a Republican-led effort do away with civil forfeiture because it would cut off a revenue stream likely worth tens of millions of dollars each year.
At a meeting with President Donald Trump on Tuesday, Sheriff Harold Eavenson of Rockwall County, Texas, said he’d told a state senator that “the cartel would build a monument to him in Mexico” if he attempted to require a criminal conviction before forfeiture.
“Who is the state senator? You wanna give his name?” asked Trump. “We’ll destroy his career.”
Although public opinion polling in a number of states and at the national level suggests a majority of voters support reforms to address legal and ethical concerns surrounding civil forfeiture, police aren’t going to give this money up easily. Some departments may even be willing to undercut new laws.
“Because local law enforcement depends so much on these revenues, there’s just immense pressure to find some way around this, to seize property anyway,” said David Pimentel, an associate law professor at the University of Idaho who has written about the legal issues surrounding civil forfeiture.
Police in Albuquerque, New Mexico, came under fire last year for continuing to seize vehicles from DUI suspects through civil forfeiture, despite a 2015 state law that banned the practice. The city claimed its own laws superseded the new statute, leading a lawmaker to introduce a bill last month clarifying that cities are indeed subject to state forfeiture laws.
With so much money at stake, it may be difficult to find a compromise that satisfies all parties.
“Politically, it’s absolutely critical that you acknowledge the legitimate concerns of law enforcement and give them the tools they need to do their jobs,” said Pimentel. “Finding some way to allow them to do that and yet deprive them of the ability to harass law-abiding citizens and victimize innocent owners is a very hard line to walk.”