Advocates of civil asset forfeiture reform, stymied in recent years at the federal level, continue to make steady progress in the states. Alas, a loophole in current law threatens to undermine these victories by letting state and local law enforcement effectively bypass state law when they team up with federal agencies.
Civil asset forfeiture is the practice of allowing government agencies to seize title to property allegedly used in connection with a crime. Longstanding precedent allows such seizures even where the government doesn't make an arrest, bring charges, or obtain a conviction.
The debate over whether to scale back the practice essentially pits civil liberties advocates against law enforcement, whose budgets often depend on the proceeds of seized assets. According to the Justice Department, between 2001 and 2012, the estimated value of assets seized nationwide through civil forfeiture jumped from $407 million to $4.3 billion.
Asset forfeiture was back in the national news recently thanks to comments from President Trump at a February meeting with the nation's county sheriffs. Though it appears he had only limited understanding of or exposure to the subject, the president shared his conclusion that those who would pressure against continuing the practice must be "bad people." It's possible Trump thought he was merely referring to criminals, but his rhetoric took on an even more hostile tone when he proposed destroying a Texas state senator's career for introducing asset-forfeiture-reform legislation.
But that sentiment is far from universal, even on the political right. Justice Clarence Thomas recently questioned whether modern asset forfeiture procedures are even constitutional, calling the matter "certainly worthy of consideration in greater detail." Historically, forfeiture laws were more narrow in scope and many of the Supreme Court's early forfeiture cases functioned as criminal rather than civil proceedings, he noted. "I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice," Thomas wrote.
Last year, Reps. Jim Sensenbrenner, R-Wis., and John Conyers, D-Mich., introduced the Due Process Act to address federal asset-forfeiture abuses, but it died on the House floor. Reform advocates have had more success with state legislators. Most recently, Gov. Terry Branstad, R-Iowa, signed legislation to raise the evidentiary standard to "clear and convincing," and require a criminal conviction before property valued at $5,000 or less could be forfeited in a civil proceeding.
However, under the federal Equitable Sharing Program, run jointly by the Justice Department and Treasury Department, local agencies get to execute an end-run around state law and retain up to 80 percent of forfeiture proceeds in the process.
While the Justice Department claims the program aims to deter crime, a 2017 report by the department's inspector general found that, in approximately two-thirds of cases where cash was seized, there was no investigation, arrest or prosecution. In other words, no real effort was made to confirm the money was tied to criminal activity.
As in other areas of criminal justice reform, states have been leading the charge toward reform. Some state governments — notably in New Mexico and California — have moved to restrict or consider restricting use of the Equitable Sharing Program. Those efforts were greeted with either retaliatory action or intimidation by the federal government, with federal officials threatening to disqualify the states from receiving any funds from the federal program if they passed the pending reforms.
When used in a limited, specific and responsible way, asset forfeiture — including the Equitable Sharing Program — can be a useful law enforcement tool. It nonetheless is one badly in need of reform. Innocent citizens shouldn't be treated as criminal suspects and have their personal property forfeited without proof of a crime. Until there are significant changes, starting with genuine efforts to discuss both sides of the issue, we can expect unfortunate instances of private property rights abuse to continue.
Christina Delgado is a contributor to the Washington Examiner's Beltway Confidential blog. She is a justice policy manager for the R Street Institute.
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