Guilty Until Proven Innocent
When I first heard the words “civil asset forfeiture” 5 years ago, I thought it was the most boring phrase I’ve ever heard. Yet, amongst all the political issues in our country today, civil asset forfeiture has randomly become the issue that I am the most interested in. So you can imagine my excitement when the Supreme Court released its decision on civil asset forfeiture as unconstitutional in February 2019. However, this issue has been occurring for decades. What began as a tool for police to employ during the War on Drugs quickly became an uncontrollable power to be abused. Generally, civil asset forfeiture is the idea that if the police have a preponderance of evidence (a bar set even lower than “reasonable doubt”) that could possibly or has been used in a crime, they have the power to seize assets from the rightful owner. Under these circumstances, police have seized over $2.5 billion over a course of 62,000 cash seizures since 2001 and a number of items that “may have been purchased with drug money” such as cars, jewelry, and even a margarita machine. In the most recent case evaluated by the Supreme Court (Timbs v. Indiana), legalized theft of Tyson Timbs’ $42,000 Land Rover was “justified” by his drug crimes that could only be legally fined $1,203 in cash.
In the 2008 case United States v. $50,000.00 in US Currency (no that’s not a typo, it really was a court case against a pile of cash), Tan Nguyen won a hard-fought battle against the Nevada police department after the judge reviewed a body-cam recording of an officer stating to
"take his money and, um, count it as a drug seizure.”
Nguyen’s case is not uncommon or even illegal; civil asset forfeiture laws have been misused frequently by police authorities to pad their wallets instead of accomplish its original purpose: to discourage criminal drug activity from inflaming. The Department of Justice even reinstated this practice in July of 2017 as a source of revenue for local police departments, practically admitting that its internal corruption depended on civil asset forfeiture. This led to many people calling for the abolishment of the law once again.
So, why do we suddenly care now? Because the Supreme Court just announced that civil asset forfeiture laws are a form of excessive punishment with an opinion written by Justice Ruth Bader Ginsburg (aka QUEEN). It’s a huge step for amending the criminal justice system and a major indication that the United States is finally correcting the mistakes of the War on Drugs. The criminal justice system is evolving, but it’s important to acknowledge that the Supreme Court’s decision has not solved the “policing for profit” problem just yet.
Most supporters of asset forfeiture laws point towards stats proving that more arrests have been made in states with civil asset forfeiture than within states without such regulations. However, this doesn’t show effectiveness; if anything, it only raises concerns about the motive for police departments to seize assets. In fact, civil asset forfeiture laws have distinct correlation with corruption rates within law enforcement: Over $1 billion in net funds have been amassed by civil asset forfeiture practices in the year 2008 alone yet the practice only accumulated $93.7 million in 1986 which mirrors the rise in corruption records over the same time period. All this data is based on the little information that states have made transparent to citizens: even though 29 states require seizure records to be published, barely 19 states could actually present substantial reports, leaving the citizens of the 31 other states completely in the dark.
Officers have even used civil asset forfeiture as a tool to perpetuate racism and classism. Police are prone to seize property of minorities and low-class citizens under the impression that they are more inclined to commit a crime. Since the forfeiture laws are ambiguous, such an insubstantial reason counts as enough evidence to incriminate the accused person’s belongings. Poor communities have fewer means to stand for themselves in court and are consequently more disproportionately targeted by police departments. Countless reports have aggregated the frequencies of cases to pinpoint substantially large numbers of seizures in predominantly minority neighborhood. When law enforcement lists flat screen TVs, jewelry, and even Call of Duty video games, it begs the question: what do these items have to do with drug crimes? It only further proves that these forfeiture laws are simply a license for law enforcement to steal from the poor.
Another obstacle complicating civil asset forfeiture cases is the fact that the owner of the property is not convicted; instead, it is the property itself. Generally, one needs to be convicted with a crime before he/she can stand trial or even have the right to a court appointed attorney. A majority of forfeiture victims are incapable of winning back their property because they are denied these basic rights. At this point, the burden of the costs of the trial process falls on the victim. Even if the victim was wrongly accused by the police officers, he/she must still pay all the fines for the attorney, trial, and any other inconveniences. Victims that have lost cars to forfeiture have had to resign from jobs because of a lack of transportation to reach their place of work.
The Supreme Court’s decision may be a step in the right direction, but it doesn’t force civil asset forfeiture onto its deathbed. The decision has merely limited the amount of monetary value police can seize to fit within criminal charges. A majority of civil asset forfeiture cases don’t even make it to court, so they wouldn’t even be considered illegal even under the Supreme Court’s new decision. In other words, officers use seizure as an alternative to arrests. Without an arrest, there is no court case and no official criminal charge to limit the assets that police can seize. If the criminal justice system truly wanted to eliminate corruption, it would have to completely abolish this abusive practice rather than making a polite acknowledgement of the dire situation.
So what are some plausible steps forward from here? One is to freeze the seized assets indefinitely so there is no motivation for police departments to seize property in the first place. Another option (and a more viable one in my opinion) is to end asset forfeiture without a criminal conviction. In other words, forfeiture should only take place after the end of a criminal case so that only those who are convicted of a crime lose their crime-related assets. Some states are already ahead of the game on this: New Mexico, Nevada and Montana have all successfully pioneered this protocol. Now, it’s up to other states to step up as well. It is time to scrap the laws blemishing an institution meant to protect us and start rebuilding the bridge of trust between law enforcement and the community.