Trump should work to end the abuse of civil asset forfeiture
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President Trump’s recent remarks concerning the practice of civil asset forfeiture at a roundtable of county sheriffs (particularly his hopefully-facetious threat to “destroy [the] career” of a Texas state senator who dares to oppose the policy) are disturbing, because they suggest he supports a frankly nonsensical practice that violates property rights, due process, and good, old-fashioned fairness and common sense.

There are two basic forms of asset forfeiture, civil and criminal, both of which enable the government to seize property or money that’s been used to commit a crime or that was acquired through criminal activity. Criminal asset forfeiture is carried out based on charges pressed against defendants in criminal court. In that context, the government must satisfy all the due process and evidentiary rules that apply to all criminal trials, including the presumption of innocence until guilt is proven. 

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Those restrictions are precisely why police and prosecutors generally prefer to employ civil asset forfeiture. In that context, the government files not criminal charges, but a lawsuit—not against actual lawbreakers, mind you, but against their property.

 

Now, if this idea that lifeless property, in and of itself, can somehow be guilty of committing crimes seems ridiculous, it’s because it is. Obviously, inanimate objects or currency can’t do anything; someone has to do something with them in order for crimes to occur. Try explaining that to opportunistic government lawyers who file lawsuits with laughable names like United States v. One 1972 Chevrolet Corvette!

This legal fiction is hardly harmless; it has dire consequences, not only for property rights, but for due process of law as well. Because asset forfeiture actions target pieces of property rather than their owners, most of the pillars of due process that apply to criminal cases are grotesquely watered down in civil forfeiture proceedings.

As long as the government can show mere probable cause that the asset was used or acquired illegally, the owner bears the burden of proving that it was not. In other words, once the loose standard of probable cause is met, the owner—or, forgive me, the property—is essentially guilty until proven innocent.

Moreover, the owner needn’t be convicted of a crime, or even merely charged with one, in order for the government to seize his or belongings. Worse yet, the property can be forfeited even if the owner did nothing wrong—that is, if someone else committed a crime with the property.

Perhaps the most worrisome aspect of asset forfeiture is the mercenary incentive that it gives authorities to “police for profit”: seizing as much property as possible—the more valuable, the better—in order to auction it off and pad their budgets with the proceeds.

What’s more, local police departments chafing under state laws that restrict the use of asset forfeiture often get around those roadblocks. Under a practice called “equitable sharing,” local authorities can alert their federal counterparts to forfeiture opportunities, whereupon the latter can forfeit the property and then divvy up the proceeds with the local police.

This underhanded tactic violates both federalism and the rule of law: police can defy legal rules established by the people’s elected representatives and circumvent state law in favor of collaboration with the feds.

Asset forfeiture is usually defended on the grounds that it enables the government to fight crime by depriving criminals of ill-gotten gains. At the aforementioned sheriff’s roundtable, Sheriff John Aubrey of Jefferson County, Kentucky lamented that "people want to say we're taking money and without due process.

“That's not true,” he added. “We take money from dope dealers.” 

Though the president’s response suggests that he fell for that dishonest claim, nothing could be further from the truth. Countless cases—sometimes litigated by vigilant watchdogs like the libertarian Institute for Justice—show that innocent people are all too often swept up in this dragnet. Moreover, police, prosecutors, and city lawyers across the country have been caught behind the scenes exhibiting the larcenous attitudes that underpin the practice of asset forfeiture. The idea that law enforcement embraces civil asset forfeiture purely out of a high-minded desire to take a bite out of crime doesn’t square with the facts.

Even if civil asset forfeiture were so well-motivated, it would still be unnecessary and unjust. It makes perfect sense to deprive true criminals of the ill-gotten fruits of their wrongdoing—but criminal asset forfeiture is the best available means of doing so. Even the truly guilty are entitled to due process of law. By preserving that and other legal safeguards in the criminal justice system, it would better protect Americans’ constitutional property rights and ensure that government only confiscates private property from those who actually deserve that fate. 

There is no good reason for asset forfeiture to exist in the civil realm. It is absurd in its inception and unjust in its application—a government racket based on a preposterous premise that effectively legalizes robbery and violates due process of law. In short, it is unworthy of any truly free society. 

Akil Alleyne is a graduate of Princeton University and the Benjamin N. Cardozo School of Law, and a former program associate at the Foundation for Individual Rights in Education.


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