America's Frightening "Policing for Profit" Nightmare

Civil asset forfeiture is a big challenge. While the Justice Department has recently stepped up to limit the scope of this problem, it is time for Congress to act. 

In a move to check certain abuses inherent in the nation’s asset forfeiture law, Attorney General Eric Holder announced last Friday that the Justice Department would limit its practice of “adopting” state and local law-enforcement seizures of property for subsequent forfeiture to the government. Under the practice, to circumvent state laws that limit forfeitures or direct forfeited proceeds to the state’s general treasury, state or local officials who seize property suspected of being “involved” in crime ask the Justice Department to adopt the seizure, after which the proceeds, once forfeited pursuant to federal law, are then split between the two agencies, with 20 percent usually kept by Justice and 80 percent returned to the local police department that initiated the seizure.

If that sounds like “policing for profit,” that’s because it is. And the abuses engendered by this law’s perverse incentives are stunning. In Volusia County, Florida, police stop motorists going south on I-95 and seize amounts of cash in excess of $100 on suspicion that it’s money to buy drugs. New York City police make DUI arrests and then seize drivers’ cars. District of Columbia police seized a grandmother’s home after her grandson comes from next door and makes a call from the home to consummate a drug deal. Officials seized a home used for prostitution and the previous owner, who took back a second mortgage when he sold the home, loses the mortgage. In each case, the property is seized for forfeiture to the government not because the owner has been found guilty of a crime—charges are rarely even brought—but because it’s said to “facilitate” a crime. And if the owner does try to get his property back, the cost of litigation, to say nothing of the threat of a criminal prosecution, often puts an end to that.

So bizarre is this area of our law—when lawyers first stumble on a forfeiture case they’re often heard to say “This can’t be right”—that a little background is necessary to understand how it ever came to be. American asset-forfeiture law has two branches. One, criminal asset forfeiture, is usually fairly straightforward, whether it concerns contraband, which as such may be seized and forfeited to the government, or ill-gotten gain, instrumentalities or statutorily determined forfeitures. Pursuant to a criminal prosecution, any proceeds or instrumentalities of the alleged crime are subject to seizure and, upon conviction, forfeiture to the government. Courts may have to weigh the scope of proceeds or instrumentalities. Or they may have to limit statutes that provide for excessive forfeitures. But forfeiture follows conviction, with the usual procedural safeguards of the criminal law.

Not so with civil asset forfeiture, where most of the abuses today occur. Here, law-enforcement officials often simply seize property for forfeiture on mere suspicion of a crime, leaving it to the owner to try to prove the property’s “innocence,” where that is allowed. Unlike in personam criminal actions, brought against the person, civil forfeiture actions, if they are even brought, are in rem, brought against “the thing,” on the theory that it “facilitated” a crime and thus is “guilty.”

Grounded in the “deodand” theories of the Middle Ages, when the “goring ox” was subject to forfeiture because it was “guilty,” this practice first arose in America in admiralty law. Thus, if a ship owner abroad and hence beyond the reach of an in personam action failed to pay duties on goods he shipped to America, officials seized the goods through in rem actions. But except for such uses, forfeiture was fairly rare until Prohibition. With the war on drugs, it again came to life, although officials today use forfeiture well beyond the drug war. And as revenue from forfeitures has increased, the practice has become a veritable addiction for federal, state and local officials across the country, despite periodic exposés in the media.

Thus, behind all of this is a perverse set of incentives, since the police themselves or other law-enforcement agencies usually keep the forfeited property—an arrangement rationalized as a cost-efficient way to fight crime. The incentives are thus skewed toward ever more forfeitures. Vast state and local seizures aside, Justice Department seizures alone went from $27 million in 1985 to $556 million in 1993 to nearly $4.2 billion in 2012. And since 2001, the federal government has seized $2.5 billion without either bringing a criminal action or issuing a warrant.

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