Civil asset forfeiture was originally designed to limit the resources available to large-scale criminal enterprises. It morphed into a way for police to confiscate and then keep or sell an individual’s property if it is allegedly involved in a crime; the owner does not even need to be arrested or convicted of said crime when police seize cash, cars or real estate.
Through civil asset forfeiture, police are able to seize an individual’s private property with no warrant and without ever pressing charges. This is predicated on the legal fiction that an object can be guilty of a crime, making the property owner’s innocence irrelevant. A mere accusation that a piece of property was involved in illegal activity is sufficient for property to be confiscated by law enforcement.
This poses an obvious risk to property owners, who can have their possessions (cash, cars, houses, and more) stolen by the government without being so much as accused of a crime. It also poses a threat to the integrity of our justice system. When police departments rely heavily on forfeitures for revenue, they will inevitably focus their resources on crimes that are profitable for police, rather than crimes that pose the most serious public harm.
Some states have laws restricting the ability of government officials to seize private property without a conviction. In many cases, state and local laws do not allow seizures which would be permissible by federal officers. Fifteen states require a criminal conviction for most property forfeitures in civil courts, and civil asset forfeiture is banned outright in three states.
The equitable sharing program provides a loophole for law enforcement to collect revenue through forfeitures where local and state laws prohibit the practice. Through equitable sharing, states and localities can forfeit seized properties to federal authorities, who may then “share” as much as 80% of those proceeds with said state and local agencies. From 2000 to 2013, equitable sharing programs raked in $4.7 billion for state and local agencies; it is no wonder that law enforcement fights so hard to keep the practice alive.
The financial needs of law enforcement obviously do not justify the equitable sharing program. Funding for government operations backed by taxpayers should be transparent.
Under federal law, property owners are required to prove that they did not know about or consent to an illegal use of their property in order to defend against asset forfeiture. Proving a negative is a difficult thing to do, and equitable sharing means that this standard can be applied even in areas where forfeiture reform has taken place.
In addition to creating perverse incentives for law enforcement, equitable sharing undermines federalism. When Tony Jalali allowed two medical marijuana dispensaries to rent his retail property in full compliance with California law, he should have been protected by state laws banning forfeiture of property worth over $40,000 without a criminal conviction. But through equitable sharing, the federal government was able to seize his property. He was able to win back his property after a year of litigation and with help from the Institute for Justice, but otherwise the local government could have taken 80% of his residential property value; the federal government would have kept the rest.
What is more troubling is the fact that Jalali could have had his property taken from him even if he had had no knowledge of the activities of his tenant. For example, the landlord of an apartment in which a tenant produced or sold drugs, or the owner of a car in which a friend drove erratically, could have the apartment or car confiscated by the government. Because of equitable sharing, states are by and large powerless to prevent these seizures.
Americans shouldn’t need the full force of a major public interest law firm just to hold on to their own property. The equitable sharing program needs to be reexamined in order to bolster the independence of state and local governments. Moreover, civil asset forfeiture needs to be reformed at the state, local, and federal levels.