Issue in Focus
Jan 18 2019
The Fifth Amendment to the United States Constitution says that no person shall be “deprived of life, liberty, or property, without due process of law.” The Founding Fathers specifically included this provision in the Constitution because, as they complained in the Declaration of Independence, the British often detained colonists and seized their property without any legal process at all.
Unfortunately in recent decades, the federal government and local law enforcement have been using a legal practice called “civil asset forfeiture” to short circuit these protections.
Criminal asset forfeiture is a well-established and just practice. Criminals who have been convicted of a crime in a court of law should not be able to keep the profits of their ill-gotten gains.
Civil asset forfeiture is more suspect. Under civil asset forfeiture, law enforcement agencies can take your property on the mere suspicion that it is connected to criminal activity. Typically, the burden is on the property owner to prove that they are innocent before they can get their property back. This is backwards and unjust.
Even worse, some states allow law enforcement agencies to keep the assets they seize instead of turning the property over to the local government’s general fund. This creates a terrible incentive for law enforcement to unjustly seize property without cause. Studies show that law enforcement agencies in states that allow the agencies to keep the property they seize have a proven track record of using civil asset forfeiture more than law enforcement agencies in states that require agencies to turn the money over.
Some states have recognized how unjust civil asset forfeiture can be and they have begun to reform the practice by placing the burden of proof on law enforcement, not property owners. Unfortunately, local law enforcement authorities can sometimes still get around these protections by partnering with federal law enforcement officials in a system called “equitable sharing.” Under this practice, local officials are able to seize property under federal forfeiture law which they give to the federal agencies, who then return up to 80 percent of those funds back to the state and local agencies. Between 2000 and 2013, annual payments to the state and local law enforcement through the Justice Department’s equitable sharing program more than tripled, growing from $199 million to $643 million.
Change is coming to our nation’s civil asset forfeiture laws. In a case that was turned away from the Supreme Court on technical grounds, Justice Thomas signaled that many states’ practices may be unconstitutional. That’s why I was happy to hear that Attorney General nominee William Barr, who I questioned this week in his nomination hearing, shares these concerns.
While we certainly want to ensure that law enforcement has the tools they need to fight crime, the federal government should not be wrongfully taking our citizens’ private property and denying them due process under the law. I look forward to further working on this issue with the Justice Department to fight for Americans’ constitutional rights and to protect them from this kind of government abuse.