The “Business” of Civil Forfeiture

Lawrence B Hunt

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Federal and state civil forfeiture laws authorize police to seize property which may have been used or obtained through criminal conduct even if the owner has never been convicted or even charged with any crime. The abuse of civil forfeiture laws by local, state and federal officials has become a subject of genuine concern and discussion. [See Sarah Stillman’s article of 8/12/13 in The New Yorker; Steven Greenhut’s article of 8/16/13 in Reason; and, Eapen Thampy’s article of 8/5/13 on the Americans for Forfeiture Reform web site.]

These articles document how civil forfeiture is now just a way for officials to “shake down" and take from innocent citizens. According to Stillman, now even many police, prosecutors, judges and other officials are concerned that, “. . . laws designed to go after high-flying crime lords are routinely targeting the workaday homes, cars, cash savings, and other belongings of innocent people who are never charged with a crime." Other officials are apparently more interested in the additional income civil forfeiture generates for their agencies.

Since the arrival of civil forfeiture laws in their modern form during the 1970s, governments have substantially increased their revenues from such forfeitures. For instance, the federal government’s proceeds from civil forfeitures in 1985 totaled $27 million. By 2012 those proceeds had grown to $4.2 billion. The economics seem simple: governments only have to prosecute those crimes they want to but they can still obtain income from those they don’t charge or prosecute.

The genius of these statutes is the legal burden it places on a person to justify their possession of their own property. It’s the citizen who must establish that they legally own their own property. Stillman’s New Yorker article gives specifics of how government agencies often use “cash-for-freedom" deals to individuals possessing significant amounts of cash or other valuables when stopped by police: i.e., the police won’t arrest you or charge you with any crime provided you agree to forfeit your cash or valuables.

Civil forfeiture laws are used to take homes from their owners because someone else living in the home, such as a child, was found possessing small amounts of drugs; even if the offending child is never charged with a crime. Civil forfeiture laws are also used to take cars from their owners even when the legal owner isn’t driving the car when it’s taken.

In Philadelphia, Pennsylvania the city auctioneer estimates that approximately 100 private homes are taken by civil forfeiture and sold each year. Generally the homes taken through civil forfeiture belong to low income African-Americans and Hispanics while the more valuable homes of affluent citizens are generally ignored.

An owner of cash or valuables taken by the police can’t recover their attorney fees and court costs incurred in contesting a wrongful seizure even if they win. The expense of contesting a wrongful seizure often exceeds the amount taken. Sometimes it’s necessary to pay a fee or bond just to preserve property from auction until its forfeiture can be challenged. The legal process of challenging a forfeiture can take years in some cases.

In short, the civil forfeiture system in its present form seems to be grossly unjust in its application and an apparently irresistible invitation to institutional or individual corruption in its design.

© 8/22/2013 Lawrence B. Hunt of Hunt & Associates, P.C. All rights reserved.

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