THE ISSUE: Civil asset forfeiture is a mechanism used by law enforcement that allows them to meet a very low burden of proof before being able to seize property from individual citizens and businesses. The assets can then be repurposed, often providing funding for the very law enforcement agency that seized it. While forfeiture began as a way to put criminal gains to a useful purpose, this government function has been expanded much too far, and now endangers individual rights and the integrity of law enforcement.
THE IMPACT: It is possible for anyone to be affected by asset forfeiture. In many states, civil asset forfeiture is used, which entails charges being brought against property, instead of an individual. This allows the burden of proof to be much lower. For example, after a traffic stop, an officer who believed that more likely than not the vehicle driven was used for criminal activity could bring the vehicle up on charges.
This happens more often than many think. In 2007, state and local law enforcement indicated that they had seized over eight hundred million dollars worth of assets. These seizures have increased dramatically over the years. Additionally, when legislation is passed to lower these numbers, these agencies will engage in “equitable sharing” with federal law enforcement, bypassing most protections. In 2012, almost half a billion dollars was paid to state and local law enforcement under the guise of equitable sharing.
Many law enforcement agencies have unconsciously allowed the use of this practice to grow until they are dependent on it for funding. As long ago as 2001, a survey of agencies had reported that 40 percent believed that funding from civil asset forfeiture was “necessary”. A 2008 NPR investigative report in Texas revealed that some Texas sheriffs’ departments “rely on forfeited money for up to one-third of their budgets.”
These massive numbers indicate more than loss of property or assets. It also indicates a decrease in protected constitutional rights. The Fifth Amendment of the Constitution protects property interest and due process. The practice of civil asset forfeiture weakens these protections.
Allowing authorities to seize the property without a conviction, and permitting such a low burden of proof for the cases that are contested, provides twisted incentives for law enforcement, which would be difficult for anyone to resist. It is important that legislation be clear and supportive of constitutional rights to protect citizens and maintain the integrity of law enforcement.
THE CONSERVATIVE SOLUTION:
Currently law enforcement has to meet the lowest burden of proof in order to seize assets. Reforms should raise the burden of proof to a “clear and convincing” standard, and require a conviction.
States can look to New Mexico’s recent reforms, which have garnered it the designation as the state with the strongest Fifth Amendment protections.
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Without Due Process of Law The Conservative Case for Civil Asset Forfeiture Reform by Derek Cohen, Texas Public Policy Foundation