The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
-Amendment IV, Constitution of United States of America 1789 (rev. 1992)
In American civil society, it is largely assumed that citizens are protected from the government arbitrarily divesting individuals of their possessions, and, in fact, the Fourth Amendment of the Constitution ostensibly guarantees that very protection (those who follow me on social media are aware of my opinions on the efficacy of Constitutional protections, but that is a very different rabbit hole, and not one we are traversing here). This is a critical point to the maintenance of a free society; protection of rights inherent to private property means not only are individuals prohibited from stealing from other individuals, but government, with its monopoly on legal force, is also prohibited from engaging in such dispossessive behavior. Indeed, Bastiat declares that because “life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place[i],” such laws are inherent to any free society in the first place.
Nevertheless, the process known as civil asset forfeiture makes it perfectly legal for government to steal. For the uninitiated, asset forfeiture is the process whereby government seizes, without compensation, property that has been implicated in the commission of a crime.[ii] In theory, the commission of crime is a necessary precondition for any legal seizure of assets, especially in cases of criminal asset forfeiture, which presupposes a certain burden of proof. However, because government has never met a source of revenue it didn’t want to wed, many jurisdictions favor the use of civil asset forfeiture, which does not require the conviction of a crime – or even a charge.
Profiting from Victimization: Civil Asset Forfeiture and the Presumption of Guilt
The difference between the burdens of proof between criminal and civil asset forfeitures is telling, and demonstrates why government and law enforcement prefers the latter. In cases of criminal asset forfeiture, it must be proven that the property was involved in the commission of criminal activity in order for government to keep it and/or profit from its proceeds[iii]. This subjects it, more or less, to the same procul dubio rationabiliter standards required for criminal convictions; in most cases, a forfeiture is invalidated without a finding of guilt.
With civil asset forfeitures, all that is necessary for the seizure of property is the suspicion of a crime. While some states give lip service to the concept of mens rea with a nominal innocent owner defense – in which the owner may retrieve his property upon proving that he had no idea it was involved in any crime – the legal presumption is that the victim of the forfeiture is guilty until proof of innocence[iv]. Moreover, not only are the victims required to prove their innocence after the fact, law enforcement and court personnel are under no obligation to inform the victim of what crime they are suspected of.
This, of course, creates a situation in which victims of civil asset forfeiture have no means in which to defend themselves. They must prove themselves innocent of a crime for which they have no knowledge of committing, against the backdrop of a legal system under no obligation to inform them why they have been separated from their property. For this, among other, reasons, although greater than 75% of the victims of civil asset forfeiture are never formally charged with any crime, the vast majority do not contest the proceedings against them. The cost of fighting faceless, nebulous charges is great; often greater than the value of the property seized. The law enforcement apparatus depends upon this very fact, that its victims are largely defenseless and incapable of fighting back.
The reason for this indefensible enormity is, of course, money. While most criminal asset forfeitures fall under state and local purview, quite the opposite is true of civil asset forfeitures, in which the majority of assets seized are done so by local law enforcement officials at the nominal behest of the federal government. This makes seized assets the jurisdiction of federal law, shifting the already ambiguous burden of proof to federal courts, adding another layer of bureaucracy and expense. Additionally, under extant federal law, local officials are entitled to up to 80% of the proceeds garnered from seized assets, through a process/program known as equitable sharing. Federal law enforcement profits from civil asset forfeitures via the expedient of nationwide volume, while local enforcement benefits by receiving the lion’s share of proceeds seized within their jurisdictions under federal civil asset forfeiture laws. It’s a win-win for everyone except the victims.
The Trump Administration and the Expansion of Civil Asset Forfeitures
All of this would be troubling even if it were rare, but civil asset forfeitures have become increasingly commonplace, despite a temporary rollback of equitable sharing at the end of the Obama Administration. As part of his misguided focus on the increased criminalization of marijuana and his zealotry for prosecuting the failed War on Drugs™, current Attorney General Jeff Sessions has called for the moratorium of adoptions of local seizures, and subsequently, equitable sharing, to end. Even more troubling is Sessions’ determination to increase the definition of criminal activity to encompass the growing, distribution and owning of marijuana in states such as Colorado where citizens have determined such activity to be legal. Of course, it is highly unlikely that Sessions would be pursuing such a course without the approval of the man in the Oval Office:
The sad irony of this position is that, in many other ways, Sessions has long been a champion of smaller government. He has fought for decentralization, cutting the welfare state, tax cuts and entitlement reform. As is all too often the case with Republican lawmakers, Sessions follows the proper path when it comes to fiscal responsibility, but fails miserably when it comes to civil liberties and enforcing his peculiar notions of morality. In service of what he deems a greater good, Sessions leads the law enforcement community at large down a path of legalized theft and extortion. These policies must cease, and those responsible for their perpetuation called to account for their sins.
To many of us in libertarian circles, much if not all of this is already old hat. However, it is not necessarily always to fellow libertarians that I write. Many of our friends, family and other assorted peers and loved ones are often unaware of such violations of our liberties, and labor under the misconception that our laws protect us from such violations. However, what protects us from laws that are written as violations? As has been done in places such as Colorado, where legislation has been passed that makes it difficult to seize property without informing him of what crime has been committed, we must band together to limit, and eventually end, the specter of civil asset forfeitures.
[Pic by AL/The Economist]
[i] Bastiat, Frédéric. 1998. The Law. Translated by Dean Russell. Irvington-on-Hudson, NY: Foundation for Economic Education, Inc. http://www.econlib.org/library/Bastiat/basLaw.html.
[ii] Levy, Leonard W. 1996. A License to Steal: The Forfeiture of Property. Chapel Hill, NC: University of North Carolina Press.
[iii] Forfeiture, Policing for Profit: The Abuse of Civil Asset. 2010. Williams, Marian R.; Holcomb, Jefferson E.; Kovandzic, Tomislav V., Bullock, Scott. Arlington, VA: Institute for Justice.
[iv] Brown, Tarnell. 2016. Privatizing the Police: A Brief Look at the Potential Benefits of Market Forces in the Operation of Law Enforcement. July 24. https://papers.ssrn.com/abstract=3014200.
To see where your state grades in terms of civil asset forfeitures, read the Institute for Justice’s report on the subject here:
To become involved in the fight to end civil asset forfeitures, check out the following links:
Tarnell is an economist, entrepreneur and social observer. When he is not being a Lucky Libertarian, he is likely plotting to take over the world (and leave you alone) and singing romantic ballads to absolutely no one.