ROC Texas’ Liberty Action Agenda
by Nikki PressleyJanuary 27, 2022
Civil asset forfeiture is a legal mechanism used by law enforcement that allows them to seize property from individual citizens and businesses while meeting only a low burden of proof. The assets can then be forfeited and 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 cast a very broad net, and now endangers individual rights and the integrity of law enforcement.
It is possible for anyone to be affected by civil asset forfeiture. In many states, there is no requirement for a criminal conviction before cash or property can be forfeited. Because civil asset forfeiture allows charges to be brought against property itself instead of an individual—which is a legal oddity—property can be taken from citizens with far fewer due process hurdles for governments to clear. 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. Meanwhile, the individual is required to prove the property’s “innocence” of any criminal involvement—a clear inversion of longstanding practice in the American criminal justice system, which presumes innocence until one is proven guilty.
This happens more often than many think. In 2007, state and local law enforcement indicated that they had seized over $800 million worth of assets. These seizures have increased dramatically over the years. Additionally, when legislation is passed to curb civil forfeiture, these agencies often engage in “equitable sharing” with federal law enforcement, bypassing most state-level protections. In 2012, almost half a billion dollars was paid to state and local law enforcement under the guise of equitable sharing.
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, as well as most state constitutions, protects property interests and due process. The practice of civil asset forfeiture weakens these protections.