End the Injustice of Civil Asset Forfeiture

Imagine police officers showing up to your house at night and demanding the keys to your car, threatening to damage it if you don’t comply.¹ They don’t provide you with an explanation or even accuse you of committing a crime. Then imagine waiting five years for the mere chance to get your car back. Sound dystopian? This is exactly what happened to a woman in Massachusetts in 2015. Police seized her car because her son, who was facing drug charges, had borrowed it. The police did not even allege that her son had used the car to sell drugs. Further, officials waited until October 2020 to provide her with the notice required for her to start legal proceedings to recover the vehicle they took.²

Unfortunately, cases like hers are common.³ Federal, state, and local governments in the United States use a process called civil asset forfeiture to seize citizens’ property. Often, the owners have done nothing wrong; one study found that 80 percent of those whose property was seized were never charged with a crime.⁴ In civil asset forfeiture cases, charges are leveled against the objects seized, not their owners.⁵ Such objects include money, weapons, cars, homes, and businesses.

To seize property, officials must allege—but not prove—that the property has been used to commit a crime, will be used to commit a crime, or was acquired illegally.⁶ Officials used civil asset forfeiture to seize $2.5 billion in cash (not including cars, real estate, or other items) between 2001 and 2014.⁷

Because these are civil cases, not criminal cases, an individual wishing to reclaim his property is not assigned a public defender—he must hire his own legal defense.⁸ The average cost of hiring a lawyer for this type of case is about $3,000, but the median amount taken (across states with available data) is $1,276.⁹

In civil asset forfeiture cases, government officials don’t have to prove that the person deprived of his property is guilty of a crime. They need only provide “clear and convincing evidence” that the property was connected to a crime. Depending on the jurisdiction, if the property was, in fact, connected to a crime, the owner often must attempt to prove that he was not aware of this and could not reasonably have been aware of it.¹⁰ The expense of this kind of legal defense is the main reason that only 22 percent of those whose property has been taken via civil asset forfeiture contest the seizures.¹¹

The roots of civil asset forfeiture reach back to before the time of the U.S.’ founding. Common law tradition allowed navies to seize suspected pirate ships, haul them back to land, and present them to legal authorities. If the ship was, in fact, a pirate ship, then those who had brought it in were allowed to keep it. This practice became law in England with the Navigation Act of 1660, and colonists brought the tradition with them to what became the United States. In the early days of the United States, this procedure was used almost exclusively for the same purpose (stopping piracy), though it was extended to seizures on land through a series of Supreme Court Cases in 1873.¹² Policy makers have further modified it since then, most notably with the 1984 Comprehensive Crime Control Act. This legislation greatly expanded the scope of civil asset forfeiture as part of the “war on drugs.”¹³ The law was upheld in a 1996 case when the Supreme Court referenced the common law practice to justify the seizure in question.¹⁴

This archaic legal argument—that a government can accuse an inanimate object of a crime and therefore keep it for itself—is still used today to violate the property rights of thousands of innocent Americans. Property rights are a moral recognition of the fact that property is the result of an individual’s productive effort. As John Locke explained, “Every man has a property in his own person. This nobody has any right to but himself. The labor of his body, and the work of his hands, we may say, are properly his.”¹⁵ Individuals who produce value and/or trade with others create, earn, or purchase property that is rightly their own. Civil asset forfeiture violates their right to that property.

So how do proponents of civil asset forfeiture defend this seemingly untenable violation of property rights? One “justification” is that when people’s property is stolen, law enforcement uses funds seized by civil asset forfeiture to help those people. Although data is not generally available on a state level, third-party investigations have shown that less than a third of funds seized by the federal government go to help victims of crimes.¹⁶

The FBI’s website also claims that civil asset forfeiture is used to fund local law enforcement.¹⁷ The practice often generates 20 percent or more of police budgets and is frequently used to purchase equipment and pay employees’ salaries.¹⁸ In a book written under a pseudonym, Kane County Illinois Sheriff Ron Hain called for “turning our police forces into present-day Robin Hoods” with expanded highway seizures. “All of our hometowns are sitting on a tax-liberating gold mine,” he wrote.¹⁹ In other words, Hain advocates stealing from citizens (the “rich”) to benefit police departments (the “poor”). And many precincts are taking Hain’s advice, hiring companies such as Desert Snow and Black Asphalt to train their officers in taking money from citizens—and these training programs work, increasing, sometimes even tripling, the amount taken by departments that use them.²⁰

This is “policing for profit,” wherein law enforcement officers are pressured to focus on seizing money rather than on protecting rights. This shameful policy is the modus operandi of many municipalities in regard to drug trafficking. For example, instead of positioning themselves along highway routes into cities, officers more commonly police outbound traffic, enabling them to seize outgoing cash instead of incoming drugs.²¹

Another common defense of civil asset forfeiture is that it deters crime. But does it? A study published by the Justice Policy Journal predicted that seizing twice as much money would decrease drug-related arrests by only half a percent.²² Dr. Brian Kelly explains, “If proponents are right that forfeiture revenues flow back into fighting crime, we might expect police to solve more crimes as they take in greater . . . revenue. Unfortunately for proponents, despite large datasets and two separate testing approaches, I find no meaningful relationship between forfeiture and crime solving.”²³

In 2015, New Mexico became the first state to abolish civil asset forfeiture, leaving in place only criminal forfeiture (which requires a criminal conviction and, therefore, due process of law). The reform also removed a perverse incentive of criminal asset forfeiture, which requires that any money seized go to the state’s general fund, rather than the agency’s own budget.²⁴ Law enforcement agencies protested fiercely; the chair of the state sheriff’s association, Ken Christesen, howled that the activity of drug cartels in the state would increase tenfold.²⁵ But it didn’t. A study in 2020 showed that “New Mexico’s offense rate was ‘even flatter than those for the [nearby] control states.’”²⁶

In March 2021, Arizona’s House of Representatives passed HB2810 with overwhelming support.²⁷ This law would require a criminal conviction for seizures and prevent the use of “roadside waivers” in Arizona, which typically require people to release their property and promise not to contest its seizure.²⁸ Officers often pressure people into signing such waivers during highway stops.²⁹

Civil asset forfeiture is an appalling practice that violates property rights. States such as New Mexico and Arizona are to be commended for their efforts to protect their citizens’ rights by abolishing this practice. However, to fully protect Americans’ property rights, we must abolish this practice at the federal level. Civil asset forfeiture must end if we are to have a just legal system.

About Angelica Walker-Werth

Angelica is a fellow at Objective Standard Institute, an assistant editor and writer for The Objective Standard. Her roles at OSI include managing the internship and scholarship programs, course administration and development, and editing On Solid Ground. She writes nonfiction articles and speaks about Objectivism and fiction; you can see her work at walker-werth.com. She is also voracious reader of fiction in her spare time, and writes about the ideas in fictional works at fictionosophy.substack.com.

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