Should police have expansive powers to seize property from suspects? Deputy Attorney General Rod Rosenstein thinks so. In a recent Wall Street Journal op-ed, he defended the controversial practice known as civil asset forfeiture, calling it “a powerful tool to make victims whole and prevent crime.”
That may be true, but the question now being asked in Congress is whether that tool is too powerful, too stacked against innocent people, and whether abuses are too common to ignore.
24 states — including California — have answered “yes,” and have reined in or eliminated the practice. It is long past time for Congress to follow suit and bring substantial, much-needed reforms to federal forfeiture law.
Rosenstein apparently disagrees. He points to three recent high-profile cases in which civil forfeiture has been used to great effect: the recovery of $3.9 billion related to Bernie Madoff’s infamous Ponzi scheme; the forfeiture of $48 million from the criminal masterminds behind the notorious Silk Road; and the seizure of property from three brothers who defrauded Medicare to the tune of $110 million and then fled to Cuba.
Nobody could argue with any of these outcomes. Indeed, civil forfeiture was ramped up in the 1980s specifically to target the assets of just this type of offender — kingpins, criminal organizations, money launders, and those who flee justice.
But the worst-of-the-worst are no longer the principal targets of property seizures. Today, seizures of relatively small amounts of cash are the norm, while big-time busts such as the Silk Road case have become the exception. Just look at the data.
One analysis of seizures in California found that, in 2013, the average value of seizures was $5,145. A review of seizures in Cook County, Illinois, found the median value of cash and property seized between 2012 and 2017 was $1,049. In Washington, D.C., the median value of seizures from 2009 to 2014 was a scant $141.
Kingpin money, this is not.
This gradual slide towards small-time currency and property seizures has created serious problems. First, forfeiture requires little — if any — actual evidence of criminality to justify a seizure, meaning that innocent people can have their cash seized all too easily.
George Reby and Matt Lee found this out firsthand. Reby, an insurance adjuster from New Jersey, had $22,000 in cash seized by a Tennessee cop as he was driving to a Nashville conference. The officer’s rationale? “Common people do not carry this much U.S. currency.” Lee had $2,400 seized as “drug money,” despite no evidence of wrongdoing.
Second, challenging a seizure is exceedingly difficult. Owners face a tortuous, opaque legal landscape filled with traps for the unwary, and are girded by scant due process protections as they try to navigate it. At no point must the government secure a criminal conviction to forfeit property; civil forfeiture targets property, not people. Owners bear the burden of proving, in essence, their own innocence, and have no right to an attorney if they cannot afford one.
Third, the proceeds of successful forfeitures are awarded to the agency that engaged in the seizure. This has led many agencies to concentrate resources on property seizures, even at the expense of arresting and convicting criminals. Indeed, in many cases officers even allow likely criminals to go free in exchange for their money.
Rosenstein acknowledges that forfeiture should be used responsibly, and has pledged better training and oversight from the Justice Department. But training alone won’t fix forfeiture’s systemic flaws.
The Heritage Foundation has proposed nine critical forfeiture reforms. Many of these recommendations have been adopted in two pieces of legislation now before Congress — the FAIR Act and the DUE PROCESS Act — that would rein in the practice and afford greater protection to the innocent.
In the final analysis, anyone asking Americans to tolerate a deficient system in the name of facilitating future cases against the Bernie Madoffs and Silk Roads of the world, is asking them to make an unnecessary trade-off.
In reality, these cases are precisely the sort that civil forfeiture was intended to be used in. The reforms now before Congress are designed to get back to a system that focuses on them, in a way that preserves forfeiture’s moral credibility.
That narrow, noble goal is one Americans can get behind.
This piece originally appeared in Orange County Register