How Did Police Seizing Citizens’ Property Ever Become Legal? Here’s the History of Federal Forfeiture

Jessica Kline / June 17, 2015

Civil asset forfeiture is a tool that allows law enforcement officials to seize property that they assert has been involved in certain criminal activity. Forfeiture rests on the legal fiction that property itself can be guilty of a crime. This means that police and prosecutors can seize cars, homes, money, or valuables without ever having to charge, much less convict, the property owner with a crime.

The roots of civil forfeiture can be traced back to Medieval English common law, but in the U.S., these laws only came to the forefront during the Civil War and later during Prohibition, to enable the seizure of vehicles transporting illegal alcohol.

Today, though, the use of these once-dormant laws has expanded exponentially, with the value of forfeitures measured in the billions and instances of abuse cataloged in nearly every state.

So how did we get to where we are today?

During the 1980s, federal and state law enforcement officials dramatically expanded the use of civil forfeiture as a tool in the war on drugs. Their reasoning was simple: By seizing the assets and ill-gotten gains of criminal kingpins, they could remove the financial incentive to commit crime.

In 1984, Congress went a step further. It created the Assets Forfeiture Fund and enabled law enforcement agencies to retain the proceeds of their seizures. Prior to this reform, forfeiture funds were directed to the General Fund of the Treasury. Agencies now had a direct financial stake in generating forfeiture revenues, creating a perverse incentive for some overzealous investigators to engage in a form of legalized bounty hunting.

States quickly followed suit—42 states dangerously shifted their law enforcement priorities toward the pursuit of profit. It is not surprising that with these direct financial incentives, civil forfeiture actions skyrocketed. Innocent and guilty citizens alike became targets for forfeiture.

In 2000, Congress took up the cause of innocent property owners and passed the Civil Asset Forfeiture Reform Act (CAFRA). CAFRA afforded modest due process protections for citizens but left in place forfeiture’s perverse financial incentives. The result: A system that encourages forfeitures and is stacked against innocent property owners.

While many of these forfeitures involve people who have committed crimes, startling stories continue to surface of cops and prosecutors seizing homes, money and cars on dubious grounds and leaving innocent victims in their wake. As abuses abound, it has become clear that the system is broken and is in dire need of reform.