Something is desperately wrong with our legal system when the government can take property from innocent people who have never been charged with a crime. It’s happening all over the country thanks to the surreal doctrine of civil forfeiture, through which courts hold inanimate objects guilty of crimes, instead of going after the actual owners who - as actual people - would be entitled to the presumption of innocence.
Dispensing with that vital presumption has proved to be highly profitable for law-enforcement agencies, which are allowed to keep some or all of the value of a seized asset. On Wednesday, Minnesota’s state auditor released a comprehensive report on $5 million worth of property grabbed in the state. A regular audit was put into place after a prior investigation revealed a police gang task force allowed seized cash and automobiles to go “missing.” Oregon’s Forfeiture Oversight Advisory Committee revealed on May 21 that cops had seized $1.8 million in cash and property last year.
After federal law was amended in 1984 to expand the use of asset seizure to combat the drug war, forfeiture cases have exploded. In 2008, the Justice Department’s Asset Forfeiture Fund had more than $1 billion in assets. Where state laws place a limit on the use of seized funds, federal law provides a work-around. Consequently, forfeiture funds now are a significant budgetary source for many agencies, increasing the incentive to seize property.
The system is ripe for abuse, as a recent comprehensive report by the Institute for Justice (IJ) details. In 27 states, the government only needs to make its case with a “preponderance of the evidence” standard, which is far below the “beyond a reasonable doubt” standard prosecutors must meet for a criminal conviction. Some states even use the lowest possible standard - “probable cause” - in seizure cases.
That stacks the deck heavily against the property owner. Even though state and federal laws offer an “innocent owner” defense, the owner bears the burden of establishing innocence - a complete reversal of the usual burden of proof. This has resulted in shocking abuses of power.
In Massachusetts, the feds and the local police are acting in concert to seize the motel owned by Russ Caswell because there might have been some drug-dealing in some of the rooms, even though the owners were unaware of it and are cooperating with the police. Perhaps the worst example comes from Wisconsin, where, as detailed by the Huffington Post’s Radley Balko, police seized the bail money of a mother who tried to get her son out of jail. The Brown County Sheriff’s Office did so by alleging the cash she had just withdrawn from ATMs smelled of drugs.
All of this happens because there is little oversight over the process. Civil forfeiture has long since lost its original link to the drug war and money laundering. At a minimum, the time has come to restore fairness by raising the standard of proof for a seizure. Better yet, the laws need to be re-written to entirely eliminate the profit motive from policing.
Nita Ghei is a contributing Opinion writer for The Washington Times.