With everything going on in the world today, news reports that the U.S. Supreme Court has officially placed limits on civil asset forfeiture could have you scratching your head and wondering why it’s getting so much attention. I’ve previously written on civil asset forfeiture, and the Washington Post even cited to it, but many laypersons don’t understand what all the fuss is about.
Asset forfeiture laws on the state and federal levels were enacted to attack criminal organizations by taking away the cars, houses, and other assets either used to commit crimes or acquired with the money gained from criminal activities. After all, the Federal Bureau of Investigation refers to it as a “powerful tool” in the war against crime.
So, why would the Supreme Court have a problem with civil forfeiture? The answer is plain as day once you take a closer look at how the laws have been used and, in many instances abused, by federal, state and local law enforcement agencies.
A brief history of civil forfeiture
Stopping criminals and criminal organizations from engaging in wrongdoing by seizing money and other assets traces all the way back to the days when pirates and buccaneers roamed the seas. Governments battling to put an end to piracy quickly realized that seizing the ships of the freebooters was an effective method for ending their criminal activity to a certain degree.
Modern-day asset forfeiture by law enforcement, however, can be traced back to its efforts against drug dealers and criminal organizations in the 1970s and 1980s. Stripping criminals of the money and assets related to their criminal enterprise proved to be so effective that its use was expanded to other forms of criminal activities, such as fraudulent schemes and other white-collar crimes. To be fair, it makes sense for the government to go after criminals, such as a Bernie Madoff, whose assets and wealth could be traced back to a criminal enterprise. In Madoff’s case, that just so happened to be a massive Ponzi scheme.
Unlike criminal forfeiture, which requires a criminal conviction before the government may pursue asset forfeiture, civil forfeiture laws permit seizure of assets absent a conviction. As long as the government can prove the property subject to a civil forfeiture proceeding was used in (or facilitated the commission of) a criminal offense, they’ve always had a good shot at getting it. A car used to transport drugs? Forfeited. Even things that could arguably be traced to the commission of a crime, such as a home purchased with money derived from the sale of illegal drugs, would likely be forfeited as well.
Where does the money go?
Historically, the proceeds of criminal forfeiture proceedings have been used to benefit the victims of criminal activities. The assets forfeited in the Madoff case totaled more than three-quarters of a billion dollars. Those assets were distributed to almost 25,000 victims. This is a common sense aspect of the law: victims should be made whole.
However, as noted by the Supreme Court, civil forfeiture takes a decidedly different path in distribution of the funds. Funds derived through civil forfeiture go primarily to fund law enforcement agencies and prosecutors’ offices. A study by the Institute for Justice reveals that laws in 43 states use 45 percent of the proceeds of civil forfeiture to fund law enforcement. The federal government and 25 states allow all of the funds to go toward law enforcement. The study found a widespread lack of oversight over how the money could be spent once it was in the hands of state and federal agencies.
Reigning in civil forfeiture: What the Supreme Court had to say
The seizure by police in Indiana of a $42,000 vehicle in connection with the sale of a small amount of drugs by its owner is typical. Those types of asset forfeiture cases have been happening every day all across American. What made this case different, though, was that it ended up on the docket of the Supreme Court.
In a unanimous ruling, the Court disagreed with a state appellate court which allowed seizure and forfeiture of the vehicle. The opinion of the Supreme Court, written by Justice Ruth Bader Ginsburg, holds the excessive fines prohibition of the Eighth Amendment to the Constitution applicable to the states under the 14th Amendment.
The value of the seized vehicle was, according to Justice Ginsburg, disproportionate to the seriousness of the crime committed by its owner. This was due in large part to the fact that the maximum fine under state law was only $10,000. It should be noted that the vehicle owner was sentenced to house arrest for a year followed by probation supervision and fines and fees totaling $1,200.
The future of asset forfeiture
It is hard to imagine governments giving up asset forfeiture all together when you consider that, according to the U.S. Department of Justice, states received more than $1 billion from its asset forfeiture program in 2018. This does not include what local governments generated through their own individual forfeiture programs as well.
The future impact of the recent Supreme Court decision on asset forfeiture remains to be seen. If nothing else, the decision can be seen as a win for those seeking justice, in that the ruling provides individuals with the ability to argue disproportionality in state courts to recover their seized property. It might encourage some state legislatures to revisit their forfeiture laws and make the procedures for challenging the taking of property less formidable than what currently exists. I wouldn’t hold my breath on that last part, but there is always a chance.
