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Time for Congress to reform civil asset forfeiture after court ruling
Back in 2015, a rather eye catching headline appeared in the news. "Law enforcement took more stuff from people than burglars did last year," it read. Think about that statement for a moment. That is millions of dollars in cash, homes, and cars stolen not by burglars but by police departments across the country. What is worse is that most of the property has been seized from innocent people who were not even charged with a crime.
You would think this was an anecdote from a former resident of the Soviet Union, but this is actually happening here in America, the land of the free. As it stands, civil asset forfeiture itself is legal in the United States. But in a unanimous ruling in Tyson Timbs versus Indiana this week, the Supreme Court incorporated the excessive fines clause of the Eighth Amendment to the states. Forfeitures are now considered the same as fines under the clause, meaning forfeitures cannot be disproportionate to the offense.
The justices may not have ruled civil asset forfeiture unconstitutional, but the decision highlights the need for Congress and state legislatures to properly address the issue sooner rather than later. The opinion is also a warning to the proponents of civil asset forfeiture, who have endlessly defended this constitutional but questionable practice because it provides law enforcement officials with additional dollars to spend.
The point of civil asset forfeiture is to seize property from individuals in relation to criminal investigations. Law enforcement officials often insist that forfeiture allows them to go after the profits of criminal activity, but all too often, innocent Americans lose their property. This flies directly against the due process clause of the Fifth Amendment that "no person may be deprived of life, liberty, or property, without due process of law."
Although Timbs had committed a crime, property or money can be seized from innocent Americans based on the assumption that their property was being used as part of criminal activity. There are numerous examples of instances in which law enforcement seized property or money from an individual who was not arrested, charged, or convicted of a crime. In the case of Timbs, however, the forfeiture was disproportionate to the offense.
There is clear evidence of police chasing property or money rather than pursuing criminal activity. Law enforcement officials in Tennessee would monitor a highway for money leaving Nashville instead of drugs going into the city. A police chief in Missouri called forfeiture proceeds "pennies from heaven." A city attorney in New Mexico called items that could be seized "little goodies" and bragged that public officials "could be czars."
Time will tell if the Supreme Court ruling this week will disincentivize law enforcement officials from abusing this practice now that forfeitures must be proportional. Only legislative action from Congress can ensure that civil asset forfeiture is used to crack down on crime rather than as a slush fund for law enforcement budgets. Although we should be cautious to read too much into decisions, the Supreme Court appears primed to deliver the final death blow to civil asset forfeiture with the right case.
Nearly 30 states have passed civil asset forfeiture reforms in recent years. Roughly two dozen of those states have increased the standard needed for the government to seize property by requiring clear and convincing evidence or proof beyond a reasonable doubt in a civil proceeding or criminal conviction before property or money can be forfeited. A handful of states have closed the loophole that allows the federal government to take over property or money seized by state and local law enforcement.
It has been nearly 20 years since Congress passed legislation related to civil asset forfeiture. With the Supreme Court decision, lawmakers should move the issue forward by pursuing legislation that increases the standard used to seize property to clear and convincing evidence, by placing the burden of proof on the government, by providing necessary counsel to those from whom property or money is seized, and much more this year.
With support from President Trump for criminal justice reform, as seen with the passage of the First Step Act and his dedication of a significant portion of his State of the Union address to the issue, the White House should now throw its support behind civil asset forfeiture reform as a way to preserve American civil liberties and the rule of law. The writing is on the wall and the pivotal Supreme Court ruling this week should serve as the reason for Congress to get serious about civil asset forfeiture reform.
Adam Brandon serves as the president of FreedomWorks.