Background

Civil Asset Forfeiture enables legal authorities to confiscate civil properties such a money, car, electronic, real state, etc. The law enforcement officers may seize the property if they sense like it has been associated with a criminal activity. In fact, the officer may not have a full evidence of the owner of the property being guilty of the crime. This law was established to prevent drugs crimes, terrorist activities, and other civil offenses, but is sometimes used as a means of revenue generation and private profit. According to FBI, th e asset forfeiture law is under Fourth and Fifth amendments of the U.S. Constitution. On top of federal law, all the states have their own laws involving civil asset forfeiture. The picture on right is of a police using a privately owned vehicle after seizing it form the owner. This is an example of a use of civil forfeiture law.

Overview

The main purpose of this memo is to provide information on the importance, risks, dangers, potential for abuse, and suggestions to prevent forfeiture related to Civil Asset Forfeiture. I will analyze the law from political and socio-economic point of view. The analysis will be based on both the civil and law enforcement party, the guilt of a wrongdoer, the type of wrong, and ways to prevent the forfeiture.

The government can take advantage of civil forfeiture law by seizing property connected with criminal activity. This, in turn, will help to reduce the incentive for illegal conduct. But, on the other hand, the law can be misused for private benefit causing loss of properties of innocent people. To prevent civil property being confiscated without justification, bills have been passed to enforce the Fifth Amendment Integrity Restoration.

Importance

According to Center for Problem-Oriented Policing (POP), Asset Forfeiture is beneficial for multiple purposes. It helps to remove profit from criminal activity which ultimately leads to crime deterrence. There are evidences, according to the POP, that shows asset forfeiture works better than traditional punishment strategies to reducing criminal activities.

Another advantage of asset forfeiture, according to POP, is that more drugs felony can be arrested by forfeiting their property. Thompson (USA today, 2013) mentions that asset forfeiture turns assets into a weapon against crime. The money raised by seizing civil assets is used by government agencies to buy technical instruments, guns, and other surveillance gears. This makes the enforcement agencies financially sound and effective in preventing drugs related crimes.

Not only money, but also tools like guns, vehicles, and computers are confiscated during civil forfeiture. For example, if a car is used by a college student to buy and sell drugs to his/her friends, there will be a negative impact on student health on campus. Under the forfeiture law, the car can be seized. This process decreases the power of criminals to do other wrong acts, and as a result, makes our community safe.

Cassella (1997) discusses in The Federalist Society about boats and trucks being used to smuggle illegal aliens, an airplane used to fly cocaine from Peru into southern California, and a printing press used to mint phony $100 bills. He says that the forfeiture law can be used to forfeit the property like vessels, vehicles, airplanes, and printing press to prevent their future use in other unlawful activities.

Finally, forfeiture, along with providing restraint against crime, also acts as a measure of punishment for the wrongdoer. Many criminals and drug traffickers are afraid of losing their luxury homes, fancy cars, and big properties more than the promises of going to jail. More often than not, the community will be ensured that the criminal is punished if the property is forfeited from the criminal and returned to the victim.

Risks and Dangers

Civil asset forfeiture is mostly known for its flaws rather than it advantages. It is structured in a way that it creates incentives for abuse and corruption by law enforcement.

Crawford (2015) recites a story of sixty-nine year old Russ Caswell and his family, owners of a motel in Tewksbury, Massachusetts. The million dollar motel property was seized by the Massachusetts local law enforcement in conjunction with federal government.

The motel had been running since 1955, and the owners of the motel were not connected with any sort of criminal activity. The government agency blamed that the motel had been used for drugs-transaction related activities. The accusation statement reads, “The motel had been used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of [the controlled Substances Act] punishable by more than one year of imprisonment."

The Caswells reported that the motel had never been used for illegal purpose. Instead, they told that, whenever they were suspicious of such activities, they called and notified police, and cooperated with them. After three years of constant battle with the government, The Caswell were able to retrieve back their property at the expense of multiple legal counsels and large amount of money.

The graph below gives an idea about the amount government seized from public using asset forfeiture law in a county of Texas in 2013. This is an astoundingly high amount raised just by forfeiture. It reflects about the government’s policy in using civil forfeiture law in recent year. It is clear that there is a good amount of support for the law.

Murphy (2015) talks about the famous “Highway Robbery" that occurred in Tenaha, Texas. She describes that the Tenaha story indicates a serious issue: civil forfeiture laws having a disparate impact on racial minorities. In 2009, a civil action lawsuit was filed against the city of Tenaha in reaction to “an illegal stop and seize" done by Tenaha police against non-white citizen.

Potential for Abuse

According to Institute of Justice, Civil Asset Forfeiture is one of the two greatest threats to property right; the other being the abuse of eminent domain. Since the civil forfeiture allows law enforcement to seize and keep private property without convicting the owner of any crime, the potential for abuse of the law has been very high in the past couple of decade. The graph below, taken form the Institute of Justice, shows the amount of funds collected by civil forfeiture over the past decade.

The graph on the right presents the amount of forfeiture funds of the Department of Justice and the US. Treasure. It shows staggering increase in funds i.e. 0.5 billion to 4.5 billion (9 times) in the span of 14 years.

The overall upward trend in the amount of funds collected raises various questions among public and law makers. Does the government promote civil forfeiture to keep the revenue stream flowing? Does the law makes it easier for police to make personal profit out of forfeiture?

Carpenter (2015) writes in Washington post that the combination of low procedural hurdles, high profit incentive, and inadequate accountability created favorable setting for forfeiture activities to flourish. It is explicit that the law has flaws in it, and it needs to be mended to have a flourished society.

Suggestions

Knepper (2015) points out that the Institute of Justice would like to see civil forfeiture abolished completely. She believes that the idea of taking somebody’s property without convicting them is just unacceptable. Also, police shouldn’t be able to profit from this system. There has been no study or evidence to tell that forfeiture is an essential tool for fighting crime. Institute for justice recommends various steps that the government can take to end civil forfeiture. It includes ending direct profit incentives, establishing high standard of proof for forfeiture, and providing a good defense mechanism for the owner to retrieve back the confiscated property.

References

Benefits of Forfeiture. (2015, October). Retrieved from Center for Problem- Oriented Policing: Center for Problem- Oriented Policing

Cassella, S. D. (1997, May 01). Forfeiture is Reasonable, and It Works. Retrieved from The Federalist Society: http://www.fed-soc.org/publications/detail/forfeiture-is-reasonable-and-it-works

Ingraham, C. (2015, November 10). New Report. Retrieved from The Washington Post: https://www.washingtonpost.com/news/wonk/wp/2015/11/10/report-in-lean-times-police-start-taking-a-lot-more-stuff-from-people/

Melson, K. E. (2007, November). Asset Forfeiture. Retrieved from The United States Department Of Justice: http://www.justice.gov/sites/default/files/usao/legacy/2007/12/21/usab5506.pdf

Private Property. (n.d.). Retrieved from Institute of Justice: http://ij.org/issues/private-property/

White-Collar Crime. (n.d.). Retrieved from Federal Bureau of Investigation: https://www.fbi.gov/about-us/investigate/white_collar/asset-forfeiture

Williams, M. R. (2010, March). Policing for Profit. Retrieved from Institute of Justice: http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf

Wollstein, J. B. (1993, July 1). The Government's War on Property. Retrieved from Foundation for Economic Education: http://fee.org/freeman/the-governments-war-on-property/

Crawford, A.(2015). Civil asset forfeiture in Massachusetts:A flawed incentive structure and its impact on indigent property owners. Retrieved from Boston College Journal of Law & Social Justice,35(2),257-284

Murphy, M. (2010). Race and Civil Asset Forfeiture: A Disparate Impact Hypothesis. Retrieved from Texas Journal On Civil Liberties & Civil Rights,16(1), 77-100.