Civil asset forfeiture is facing renewed pressure for reform from members in Congress concerned about its abuse, and the Justice Department appears to be pushing back—hard.
Last week, Deputy Attorney General Rod Rosenstein penned a lengthy panegyric to the controversial practice, calling it “a powerful tool to make victims whole and prevent crime.”
That is undeniable. But the question being asked in Congress and in virtually every state legislature is whether that tool has become too powerful, too stacked against innocent property owners, and whether some law enforcement officials have become too determined to get at the proceeds of crime, even at the expense of traditional functions like arresting and prosecuting criminals.
To date, 24 states have answered “yes” to one or all of these questions, and have reined in or eliminated the practice. Yet, judging from his piece, Rosenstein fervently disagrees with that assessment.
The Evidence
Rosenstein points to three high-profile cases in which civil forfeiture has recently been used to positive effect: the recovery of $3.9 billion of illicit proceeds related to Bernie Madoff’s infamous Ponzi scheme; the forfeiture of $48 million from the criminal masterminds behind the notorious dark web drug emporium, the 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 can argue with any of these outcomes.
But these anecdotes are hardly representative of the norm in modern civil forfeiture cases. The tool was ramped up in the 1980s to go after the assets and ill-gotten gains of the worst-of-the-worst offenders—the Madoffs and Silk Road operators of the world—and the implication in Rosenstein’s piece is that this class of offender remains the principal target of forfeiture operations.
The data, however, suggest otherwise. One analysis of seizures in the state of 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. Forfeiture’s reach has extended well beyond its intended purpose.
Guilty Until Proven Innocent
Another problem is that the current forfeiture process requires little—if any—actual evidence of criminality to justify a seizure.
Rosenstein insists that “money or property cannot be seized without a lawful reason. The evidence must be sufficient to establish probable cause to believe a crime was committed.” This “evidence,” though, often amounts to little more than an officer’s belief that carrying any large sum of money is evidence in itself of wrongdoing.
George 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. Reby had proof that the money was legitimate, but the officer seized it anyway, stating in an affidavit that “common people do not carry this much U.S. currency.”
Matt Lee had $2,400 seized by a Nevada sheriff’s deputy during a cross-country drive to start a new job in California. The money was a gift from a loving father hoping to help his son get on his feet, but the deputy called it drug money and seized it despite uncovering no evidence of illicit behavior.
Lee and Reby were obviously innocent, but only after considerable effort and publicity did they manage to get their money returned. Many are not so lucky.
In his piece, Rosenstein points out that 80 percent of seizures are never challenged, a fact he interprets as a clear sign that “most cases are indisputable.”
But there is another potential explanation. Civil forfeiture laws offer scant due process protections. Property owners contesting a seizure must hire an attorney out of pocket, or navigate a tortuous legal landscape alone, and the administrative process has many traps for the unwary that can result in property owners inadvertently waiving their rights to contest a forfeiture.
In either case, they face long odds: Federal forfeiture laws place the burden on the property owners to prove, in essence, their own innocence. When the value of what is seized is less than the cost of an attorney, a rational property owner—even an entirely innocent one—may have little choice but to drop the matter.
In fairness, the majority of cash seizures likely can be tied to drug offenses or other crimes. As Rosenstein points out, “when the police find $100,000 in shrink-wrapped $20 bills hidden in a suitcase, usually there is no innocent explanation.”
That is true. Still, the question must be asked, what do law enforcement officials do after they discover this sum of money? Do they make arrests? Do they seek to prosecute offenders? The answer to these questions is frequently “no.”
Extortion of the Innocent
This year, a scathing Department of Justice Office of the Inspector General report revealed that poor data collection and analysis made it impossible to say conclusively whether seizures “benefit law enforcement efforts, such as advancing criminal investigations.”
This same report reviewed 100 cash seizures made by the Drug Enforcement Administration, finding that only 44 could be tied to an arrest, a prosecution, or the initiation or advancement of a criminal investigation.
The Washington Post has previously reported that, from 2001 through 2014, law enforcement officials nationwide seized more than $2.5 billion in cash from 62,000 people in a series of roadside, warrantless seizures that resulted in no indictments.
In 2010, two drug task force officers working a strip of highway in rural Tennessee pulled over a refrigerated truck, suspecting it was being used to transport drug money.
According to dashboard video, one officer told the driver, “Hey, I’m not asking you if you have knowledge about it, and I won’t ask you if you have knowledge about it. You understand me? It’s not my job. … All I’m asking you is, where’s the money?”
Shortly thereafter, the driver revealed the location of $500,000 in shrink-wrapped bills, signed a waiver disclaiming any interest in the currency, and was allowed to go free.
In Oklahoma, a sheriff was indicted on bribery and extortion charges stemming from a 2014 traffic stop. The sheriff discovered $10,000 in cash and evidence of drug dealing in the car, and initially arrested the driver on charges of felony possession of drug proceeds. But then the sheriff made the driver an offer he couldn’t refuse: to let him go if he waived his rights to the money.
The sheriff’s department got $10,000 richer, and the drug dealer was released, only to be convicted later (thankfully) in Missouri of methamphetamine distribution.
Surely, this is not the sort of police work the Department of Justice wishes to condone or incentivize.
In his piece, Rosenstein writes of the need to enhance accountability within the department and provide additional “training on the ethics and legal requirements of forfeiture.” These are welcome developments, but preventing abusive and unjustifiable forfeiture practices will require more significant steps.
Reform Starts in Congress
Congress should end the forfeiture financial incentive, which allows agencies to retain the proceeds of successful forfeitures, and spend it with little accountability. This encourages profiteering, risks agencies becoming dependent on revenue from seizures, and can so warp department priorities that cash seizures displace arrests and prosecution, and become ends in themselves.
We can all agree that law enforcement officers should be generously funded, but that funding should come through the appropriate constitutional channel: the legislature.
At the very least, so long as law enforcement authorities are permitted to keep some or all of these funds, there should be much greater transparency about how much is seized and the uses to which those funds are put.
Congress must also enhance the due process protections available to innocent property owners, beginning with the standard of proof in forfeiture cases. Rosenstein insists that the normal civil standard, a preponderance of the evidence, is more than sufficient in these cases.
With all due respect, this is simply not the case. Going back to 1886, the Supreme Court has recognized that forfeiture is quasi-criminal in nature. With this in mind, and given that someone’s home or life’s savings may be at stake, the normal civil standard is too low.
Congress should elevate the standard to clear and convincing evidence, and require that the government prove not only that the assets to be seized are tied to a crime, but that an owner knew about or turned a blind eye toward the illegal conduct.
These are just two of nine critical reforms to asset forfeiture laws that The Heritage Foundation has proposed. Many of them have been adopted in two bills now before Congress—the FAIR Act and the DUE PROCESS Act.
In the final analysis, Rosenstein’s article aims to buttress the status quo by charging that reforms will make it impossible to go after the Bernie Madoffs, the Silk Roads, and the absconders from justice.
In reality, for two centuries civil forfeiture laws allowed the government to seize assets from criminals beyond the reach of U.S. authorities.
In the 1980s, Congress ramped up forfeiture for the express purpose of targeting the worst-of-the-worst offenders. The reforms now before Congress are not designed to inhibit that government action—they are designed to get back to a forfeiture system that focuses on them, in a way that preserves forfeiture’s moral credibility.
That narrow, noble goal is one Americans can get behind.
