Civil Asset Forfeiture
An affront to our natural rights.
The story of America and its government is one of declared rights and freedoms, and a struggle for the most fully realized and practical method for which to deliver these rights to the people. Some have been upheld with excellent results, while others have been belabored and impeded for various reasons. One of the most important of these enumerated rights is laid out in the Fourth amendment of our Constitution; “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. As is often the case, it is obvious that some issues clearly fly in the face of the assumptions and intentions of the Framers. The government action known as civil asset forfeiture is clearly one of them. Civil asset forfeiture is a tool used by law enforcement to legally confiscate your possessions that they believe may be connected to criminal activity in some form or another . This process, instead of charging a person with a crime, instead applies the criminality to the object itself. The “probable cause” threshold needed to be cleared in order for the seizure to be legal is often only a matter of the flimsiest of evidence or hearsay. How could this practice still be allowed, when the Constitution so expressly forbids it? There are multiple reasons as to why this type of government action is allowed to persist, varying from historical precedence stretching back as far as medieval laws to Civil War Congressional responses, the murky legalities and complex constitutionality debate, and the multiples charges of “policing for profit” and the obvious benefits that civil seizures confer upon law enforcement agencies. These difficulties combine, along with a largely ignorant or indifferent public, to allow for a blatantly unconstitutional practice to continue to the shame of our elected representatives.
The historical development of civil asset forfeiture in the United States has a very early forerunner. In medieval Europe, a concept was developed under the various monarchies there that allowed by royal decree the confiscation of weapons used in murder cases. Titled the deodand, which in Latin translates to “that which is owed to God”, this concept was likely at first used for religiously concerned purity purposes and was then eventually expanded to more closely resemble our modern conception of asset forfeiture. Monarchs augmented the practice to allow for seizures of property in order to constitute an additional fund to the government. The practice had parallels to our Founding Fathers as well; in the 17th century, the British Navigation Acts required that American ships and their crews service the Crown in various ways through contributing to the mercantilist system of economics, lest they be subject to seizures of their cargo and the ship itself. The most forthright development of the practice under American law came during the Civil War, and has some curious links to slavery and other issues of the Constitution. Asset forfeiture was used as an effective method of punishing secessionists at the beginning of the war; Southern property owners left their assets in the North, fled to the South, and thus were not present to be tried in person. In order to circumvent this difficulty, Congress instituted the Confiscation Acts from 1861 to 1864. Their first and foremost intention was to free slaves, by allowing the Union to seize the “property” of Confederates that happened to be African–Americans, along with the other materials in the North. President Abraham Lincoln, delicately balancing the war with his goal of instituting emancipation via constitutional amendment, objected to the law as it was hailed in the North as de facto emancipation. The practice was upheld by the Supreme Court in the 1870’s, and again in 1921 in J.W. Goldsmith, Jr.–Grant Co. v. United States, where the practice was declared in the majority opinion to be similar to “the law of deodand”. The 1970’s and 1980’s saw a resurgence in the popularity of the action under law enforcement agencies who were committed to the War on Drugs. They began to use it with renewed frequency and aggressiveness in order to combat drug dealers who they could not bring personal charges against.
Anecdotal evidence against the practice of civil asset forfeiture is available by the boatload for anyone looking for it. While these unfortunate stories are legitimate and deserve consideration, the argument against the constitutionality of the practice wields far greater power in our system, especially when it comes to a Congressional debate or a Supreme Court decision. However, it is the clear that there is a question of its legality, despite it being seemly expressly denied by the Fourth amendment. So how is the practice of civil asset forfeiture justified? It is achieved by invoking a curious legal idea of specious legitimacy, called in rem seizures. Civil forfeitures are in rem, the latin translating to “against a thing”. This legal doctrine dictates that the object seized is itself “guilty”, and thus can be labeled the convicted party in charges by the government. This differs from in personam claims, which are used in criminal cases and are charges brought against an individual, after that individual has been convicted of the crime beyond a reasonable doubt. In rem proceedings has their roots in the deodand and similar charges, and their precedence in the common law systems extends for hundreds of years. It is important to note the importance of constitutional arguments as it relates to their standing over other justifications; if it is clear that civil asset forfeiture is unconstitutional, then the benefits of the program are moot in terms of legitimacy to the debate, at least under the American constitutional system. It is the freedoms and rights enshrined by the Constitution that avail us the civic privileges that we cherish and that other countries do not guarantee. Acknowledging the preeminence of the Constitution in a moral and legal sense will lead us to a conclusion that an argument upon those grounds supercedes all others.
So how do civil asset forfeiture advocates validate the practice, in the face of its very plain ban via the Fourth amendment? In rem is used to circumvent the demands the Constitution places upon the government to provide individuals due process. The Constitution only requires that the government adhere to the “right of the people” to have all the elements of the amendment observed; it makes no such distinction for actual objects, the property that you may own. This is a mistake born of an either deliberate or uninformed understanding of the roots of the Constitution, and what the rights that are enshrined in the Bill of Rights are based upon. It is faulty on two different fronts. The first is that in rem seizures are a foolish doctrine that provides intentions and convictions upon an object that can hold neither, and is clearly a lazy attempt to justify asset forfeiture from its inception. The second is, even if we were to concede that objects can be “guilty”, such a conclusion could only be derived from John Locke’s crucial law of what makes an object one’s own “property”, and thus the object’s inherent link to an individual’s action would nevertheless require an in personam proceeding against the individual.
Anyone not consumed by the legalisms and complicated, twisting logic so constantly employed when philosophy and politics meet to justify ends could tell you that the idea of an object being guilty is foolish. “Guilt” implies action, in that to be guilty you not only have to feel some way or have someone feel a way about you, but you must have done something in order to have a guilty charged leveled against you, and for it to be a legitimate charge; you have to be able to feel guilt, or understand the idea of guilt. Since objects obviously cannot act upon their own power, it follows that they also cannot be guilty inherently. In what possible world could such a silly doctrine still hold water? It is only one in which courts are loathe to overturn precedence, even if it is a detestable notion. Caleb Nelson argues that while detestable and unfair, civil asset forfeiture is still constitutional, in part because, “noncriminal forfeiture typically proceeds in rem rather than in personam”. Yet this argument assumes the legitimacy of a silly and so clearly malicious in rem doctrine. The idea that objects are culpable themselves in a crime is detestable in a country noted for its rugged individualism and the lofty weight to which it assigns individual responsibility.
For the sake of the second point, let’s assume that in rem seizure is a legitimate law enforcement doctrine, and not the dregs of a medieval money scheme brought to us by common law. How would be justified? In rem is defined by this explainer in Black’s Law Dictionary:
“ It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and lias for its object the disposition of property, without reference to the title of individual claimants; hut, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein.”
Even in explaining the doctrine, it is obvious that the proceeding is not actually against the property itself, but simply used in place of an individual who is unable to be prosecuted. You cannot understand why in rem exists without understanding it is simply trying to bypass the legal difficulty of bringing spurious charges against an individual. But this doesn’t explain the inherent connection between the object and the individual, at least in a way that justifies an in rem proceedings existence. A more viable (but still ultimately condemning) link is to be found in John Locke’s appraisal of why we are entitled to private property as free individuals. In his Second Treatise on Government, Locke theorizes that when an individual “takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property”. This justification implies that not only is objects upon which you have exerted in some way in the state of nature yours, but that it is also a part of you; your labor has left your mark, indeed yourself, upon the object. Only in this way is there legitimate assumptions to be made about an object’s state in terms of in rem seizures, but even still there is an element of its connection to the individual owning it. If an object is someone’s private property, and we hold Locke’s labor theory of property to be true, then the object itself in an extension of the person, not a culpable individual on its own. In rem seizures assume a state of the object that can only exist as a result of the individual who owns it own intentions; therefore, it would follow that the individual must be tried for the guilt of the object, not the object itself. If a person were forced at gunpoint to commit a crime, should we charge the person forcing them or the person themself? A consistent logic would force any honest thinker to charge only the true catalysts of the suspected crime, and thus justifies only in personam seizures of property, where guilt is proven beyond a reasonable doubt.
Despite the obvious conundrum civil asset forfeiture poses constitutionally, it exists and works in every state in America. A study surveilling the connections between civil asset forfeiture and “policing for profit” finds that, “consistent with anecdotal reports and limited prior research, findings indicate that agencies in jurisdictions with more restrictive state forfeiture laws receives more through federal equitable sharing”. What is equitable sharing? The study explains that it is a process through which state and local agencies purportedly circumvent tight state laws on asset forfeiture by sending it to the federal government, for which they receive a cut of the profit. The Comprehensive Crime Control Act of 1984 allows “state and local law enforcement agencies to transfer assets and property they seize to federal law enforcement agencies”. This can occur whenever the objects in question are in violation not only of state law, but of federal law. The objects can be seized and sent to the requisite federal agencies regardless of whether the owner has been convicted of a crime. Once the assets reach a federal forfeiture fund, a cut of usually 80 percent is recompensed to the agency who sent it, often far more than they could get if they remained under state jurisdiction and law. The funds raised from the sale of asset forfeitures can be used for almost any purpose in less controlling states, be it for the actual law enforcement agency or other areas, like prosecutor offices, schools or favored local programs.
There are two types of federal equitable sharing: joint investigative forfeitures and adoptive forfeitures. Joint investigative are state and local agencies cooperating with federal agencies. These often are not favored because of the legal complications conflicting law can produce. Adoptive forfeiture is the regular method described above; it completely removes the possible restrictions of state law, partly through coercion by the federal government. The federal government will threaten to end equitable sharing agreements between agencies if they allow local or state law to hinder their action, forcing agencies to pressure lawmakers to allow them to disregard the legislation on civil asset forfeiture through various means.
The same study notes that other surveys of the data show that agencies who engage in equitable sharing receive more funds than those forgo it. Proponents of civil asset forfeiture laud the practice for streamlining cross–department cooperation and ensure that the only allowed users for confiscated funds are the departments themselves. The study notes that these are “superficial rationales”, and that “ the most reasonable explanation is that it is in the financial interests of many state and local agencies”. Is the purpose of law enforcement to enforce the laws for abiding citizens, or do they work only for their own benefit?
Why are federal agencies so determined to get their hands on forfeited materials, so much so that they compel state and local agencies to honor their version of the laws? While it is clearly in part money related, like most things in politics and government, many of the civil asset forfeiture laws on federal books are meant to be in line with international agreements. A survey of the civil asset forfeiture regimes in the U.S., Britain, Ireland, Bulgaria and Serbia finds that many have civil asset forfeiture laws in place with a particular mindfulness of the laws passed in the U.N. and the European Union, as well as other international agencies. They emphasize the importance of these laws for their ability to supercede national laws that may impede the ability in some countries to seize property suspected of being related to crimes. A 1990 Council of European Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime enabled and obligated members of the E.U. to pass “necessary legislation” in order to allow for law enforcement to confiscate suspected property. The U.S. has adopted or already had on the books similar codes to United Nations edicts on civil asset forfeiture. These may seem like narrow concerns given the other pressing issues in foreign policy, but such small points that can be made with limited repercussions in the public sphere ultimately benefit international relations overall, at the expense of citizens and their rights.
Legislation and Supreme Court rulings on civil asset forfeiture, especially relatively recent ones, shed some light on the changing or staid government views on the subject. Bennis v. Michigan, a landmark ruling on civil asset forfeiture, ruled in 1995 that a case concerning a car seized without the knowledge of the owner did not violate the Fourteenth or Fifth amendments. In the opening summary of the case materials, the opinion cites the longstanding precedent of asset forfeiture being upheld regardless of the lack of knowledge of the owner, stating “These cases are too firmly fixed in the country’s punitive and remedial jurisprudence to be now displaced”. It is also curious that the opinion expressly avoids considering the Fourth amendment and its relation to the case, given it clearly is paramount to civil asset forfeiture questions.
More recent developments on the Court have suggested that the legitimacy of civil asset forfeiture is coming into question. A fascinating opponent of the practice has emerged: Justice Clarence Thomas, the most dedicated originalist on the Supreme Court. In an order list detailing the cases denied a hearing, Thomas writes about the illegitimacy of the practice, specifically of in rem seizures: “These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime”. He also highlights the many egregious abuses of power that result from the practice, and questions whether the court and the U.S. government at large can continue to ignore the very obvious questions the practice raises.
A recent case that the Supreme Court heard has attracted attention for the seeming mundanity of the issue, compared to the big ticket decisions that the court normally hears. In Nelson v. Colorado, a case heard in April of 2017, the court ruled in a clear majority that Colorado’s specific civil asset forfeiture regime, mainly its requirement that defendants in the cases prove their own innocence, violates the Fourteenth amendment. The article notes that the issue of civil asset forfeiture is one that is unique in that it often unites conservatives and liberals in opposition to it, something the Supreme Court is desperate for given the turbulent politics surrounding it of late. What is more fascinating, and is corroborated by the statements made by Justice Thomas, is that the case would appear to be setting the stage for a more standout opinion on the issue of due process as it relates to civil asset forfeiture: “the majority likely wanted to take a strong and unified first step toward addressing the Due Process rights…The court appears to be on the lookout for a good vehicle to address these Due Process concerns…”. Whether or not the Court will take action on the issue remains to be seen.
The 2000 Civil Asset Forfeiture Reform Act is the prevalent piece of recent legislation on the subject. The Congressional Research Service notes that the bill
“Amends the Federal criminal code (the code) to establish general rules relating to civil forfeiture proceedings. (Sec. 2) Sets forth notification requirements with respect to seized property and civil forfeiture proceedings, including: (1) a requirement that the notice the Government is required to send to interested parties in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute be sent to achieve proper notice as soon as practicable and within 60 days after the date of the seizure; and (2) required conditions for extending the notification period.”
Among other things, the legislation requires the government, upon a claim filed by the property owner, to either issue an indictment against that claimant or return the seized property, within 90 days. While this legislation provides more consistent accountability at the federal government level, it does not outlaw the practice, or significantly reduce the occurrences of forfeitures nationally. The Forbes article cited notes that in 2012, the amount of assets seized was 4.2 billion dollars worth, a 150 percent increase over the prior year. There is still needed legislation to solve the issue of corrupt and unconstitutional asset forfeitures.
What solutions have been proposed to solve the problem? There are existing temporary fixes. Jeff Sessions, the current attorney general, recently decided to revamp the Justice Department’s equitable sharing program. In response, a bipartisan group of House representatives, led by libertarian Republican Justin Amash, passed a unanimous amendment by voice vote to a larger appropriations bill cutting off funding to the measure. A group of senators is now attempting to get similar legislation going, by including at least one of three similar amendments in the final appropriations bill: “in a letter to Sen. Richard Shelby (R-Ala.), one of the lawmakers hammering out the difference between the House and Senate versions of the appropriations bill…pushed to include at least one of the amendments in the final version”. While these are short term solutions to the issue at the federal level, it does not solve the issues of innocent victims who are subject to civil asset forfeiture in states with loose restrictions on the practice. The most effective, and the most probable, solution to civil asset forfeiture overall would be a Supreme Court case banning the practice outright.
Given the comments and posturing of the court recently, the prospect of them taking up a good case on civil asset forfeiture is not unlikely. There would be an ideal solution that the court could allocate, one that is in the best intentions of both the people and law enforcement agencies. This would likely come in the form of a strict ban on in rem seizures in any capacity; however, a prudent court decision would do so while also reaffirming the use and legitimacy of in personam seizure. Convicted criminals should always lose the profits gained in their crime, but only after they have been proven guilty beyond a reasonable doubt. This would be a solution consistent with the Constitution and a logical application of laws in a nation, as well as in the best interests of the people.
