Civil forfeiture in the United States

In the United States, civil forfeiture (also called civil asset forfeiture or civil judicial forfeiture) is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself. Civil forfeiture is not considered to be an example of a criminal justice financial obligation.
Proponents see civil forfeiture as a powerful tool to thwart criminal organizations involved in the illegal drug trade, since it allows authorities to seize cash and other assets from suspected narcotics traffickers. They also argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is, directly converting value obtained for law enforcement purposes by harming suspected criminals economically while helping law enforcement financially.
Critics argue that innocent owners can become entangled in the process to the extent that their 4th Amendment and 5th Amendment rights are violated, in situations where they are presumed guilty instead of being presumed innocent. It has been ruled unconstitutional by a judge in South Carolina. Further, critics argue that the incentives lead to corruption and law enforcement misbehavior. There is consensus that abuses have happened but disagreement about their extent as well as whether the overall benefits to society are worth the cost of the instances of abuse.
Civil forfeitures are subject to the "excessive fines" clause of the U.S. Constitution's 8th amendment, both at a federal level and, as determined by the 2019 Supreme Court case, Timbs v. Indiana, at the state and local level. A 2020 study found that the median cash forfeiture in 21 states which track such data was $1,300.
Civil forfeiture in the United States has a history dating back several hundred years, with roots in British maritime law. In the mid-1600s, when what would become the United States was a British colony, the British Navigation Acts were enacted. These laws required ships importing or exporting goods from British ports to fly the British flag; ships that failed to do this could be seized regardless of whether the ship's owner was guilty of any wrongdoing. It was easier to seize a vessel than try to apprehend the owner, who may be on the other side of the ocean.
During the later Colonial years, forfeiture practices by Crown officials using writs of assistance were one of the many activities that angered colonists, who saw the writs as "unreasonable searches and seizures" that deprived persons of "life, liberty, or property, without due process".
After the American Revolution, the early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the Republic. Seizures allowed government to confiscate property from citizens who failed to pay taxes or customs duties. The Supreme Court upheld these forfeiture statutes in situations where it was virtually impossible to get hold of guilty persons on the high seas while possible to get hold of their property. As explained by Supreme Court justice Joseph Story:
During much of the 19th century, little attention was paid to forfeiture laws.
The US Government used forfeiture during the Prohibition years (1920–1933). Police seized vehicles, equipment, cash and other property from bootleggers. When Prohibition ended in 1933, much of the forfeiture activity ended as well. Modern forfeiture was an "infrequent resort" until the last few decades.
Since 1980, the War on Drugs has led to substantially increased civil forfeiture by federal, state, and local government. The market for illegal drugs in the United States is large: the Drug Enforcement Administration estimates the annual profit from selling illegal drugs is $12 billion. However, it has become harder for criminal organizations to launder drug money by means of the financial system; drug cartels have thus preferred bulk cash payments. The initial intent behind increased civil forfeiture was thus to use forfeitures as a weapon against drug kingpins, similarly to how forfeiture was used to fight alcohol trafficking during the Prohibition era.
According to journalist Sarah Stillman, a major turning point in forfeiture activity was the passage of the Comprehensive Crime Control Act of 1984. This law permitted local and federal law enforcement agencies to share seized assets. According to Stillman, civil forfeiture allowed federal and local governments to "extract swift penalties from white-collar criminals and offer restitution to victims of fraud". From 1985 to 1993, authorities confiscated $3 billion of cash and other property based on the federal Asset Forfeiture Program, which included both civil and criminal forfeitures. The methods were supported by the Reagan administration as a crime fighting strategy:
The politics of civil forfeiture were somewhat unusual. The federal forfeiture laws were introduced and pushed through Congress by Republicans in the 1980s, with some Democrats supportive and some critical. Additionally, some libertarian-leaning Republican members of Congress have been critical of civil forfeiture, considering it offensive to property rights. Civil liberties organizations like the American Civil Liberties Union have long been opponents of civil forfeiture. A common criticism of civil forfeiture is that it adversely affects minorities and people from low-income communities (whose seizures are typically less than $500).
Forfeiture was used for purposes other than trying to discourage illegal drug activity, such as attempts in New York City to discourage drunk driving. Forfeiture rules were used to confiscate cars of intoxicated motorists. In such instances, there are two types of cases: a criminal case against the drunk driver as a person, and a civil case against the property used to facilitate the drunk driving, specifically their car. Critics contend that the punishment can be "deemed out of proportion with the offense"; for example, after a drunk driver is arrested and convicted and possibly imprisoned, is it proper to punish him or her additionally by civil forfeiture means by confiscating a $50,000 car? Civil forfeiture has been used to discourage illegal activities such as cockfighting, drag racing, gambling in basements, poaching of endangered fish, securities fraud, and other illegal activity.
Courts helped set up the legal framework to help law enforcement stem the drug tide while sometimes trying to rein in abuses. A 1984 law set up the equitable sharing arrangement in which state and local police can share the seizures with federal agents. While the 1993 Supreme Court case Austin v. United States ruled that a forfeiture could be considered as an excessive fine, the court upheld the principle of civil forfeiture generally. A 1996 Supreme Court decision ruled that prosecuting a person for a crime and seizing his or her property via civil forfeiture did not constitute double jeopardy, and therefore did not violate the Constitution. However, in 1999, the Supreme Court ruled that civil forfeiture was not permitted if the amount seized was "grossly disproportional" to the gravity of the offense.
Legislatures played a role as well. Since the 1990s, the number of federal statutes permitting government forfeiture doubled from 200 to 400. In 2000, lawmakers passed the Civil Asset Forfeiture Reform Act, or CAFRA, which stipulated protections for individuals and increased the level of proof required. Critics said that the new guidelines did not require poor persons to have free access to legal services. CAFRA guidelines suggest that if a claimant wins a civil-forfeiture case, that some of the legal fees paid to recover the property are partially payable by the government. CAFRA was supposed to raise government's burden of proof before seizing property. CAFRA meant if government loses a forfeiture challenge, government must pay the victim's attorney costs, but often victims are unaware of this fact, so they fail to hire lawyers thinking the cost will be prohibitive.
Police forces heeded instruction from a law enforcement consultant named Joe David who had an "uncanny talent for finding cocaine and cash in cars and trucks", according to one report. Officers trained in David's so-called Desert Snow stop-and-seizure techniques raked in $427 million from highway encounters during a five-year period. A contract allowed David's consulting firm to keep 25% of the seized cash.
But when innocent owners were sometimes ensnarled in seizure proceedings, it spurred criticism. In the early 1990s, San Francisco-based defense attorney Brenda Grantland organized a group called Forfeiture Endangers American Rights (which spells the letters FEAR), with branches in New Jersey, Virginia, California, and Massachusetts. Debate about reforming civil forfeiture procedures happened in the late 1990s but after public scrutiny died down, lawmakers quietly relaxed the reforms at the behest of police groups and prosecutors without much public debate.
Civil forfeiture was used successfully on many occasions. For example, it was used to seize assets by corrupt foreigners, such as against Teodoro Nguema Obiang Mangue, who stole money from the African nation of Equatorial Guinea and was convicted. Overall, the pattern in recent decades has been a substantial increase in forfeiture activity. According to government records, Justice department seizures went from $27 million in 1985 to $556 million in 1993 and $4.2 billion in 2012.
In 2015, Eric Holder ended the policy of "adoptive forfeiture", which occurred "when a state or local law enforcement agency seizes property pursuant to state law and requests that a federal agency take the seized asset and forfeit it under federal law" due to abuse. Although states proceeded to curtail the powers of police to seize assets, actions by the Justice Department in July 2017 have sought to reinstate police seizure powers that simultaneously raise funding for federal agencies and local law enforcement.
Civil procedure cases generally involve disputes between two private citizens, often about money or property, while criminal procedure involves a dispute between a private citizen and the state, usually because a law has been broken. In legal systems based on English common law such as that of the United States, civil and criminal law cases are handled differently, with different tests and standards and procedures, and this is true of forfeiture proceedings as well. Both civil and criminal forfeiture involve the taking of assets by police.
In civil forfeiture, assets are seized by police based on a suspicion of wrongdoing, and without having to charge a person with specific wrongdoing, with the case being between police and the thing itself, sometimes referred to by the Latin term in rem, meaning "against the property"; the property itself is the defendant and no criminal charge against the owner is needed.
In contrast, criminal forfeiture is a legal action brought as "part of the criminal prosecution of a defendant", described by the Latin term in personam, meaning "against the person", and happens when government indicts or charges the property that is either used in connection with a crime, or derived from a crime, that is suspected of being committed by the defendant; the seized assets are temporarily held and become government property officially after an accused person has been convicted by a court of law; if the person is found to be not guilty, the seized property must be returned.
The tests to establish the burden of proof are different; in civil forfeiture, the test in most cases is whether police feel there is a preponderance of the evidence suggesting wrongdoing; in criminal forfeiture, the test is whether police feel the evidence is beyond a reasonable doubt, which is a tougher test to meet.
If property is seized in a civil forfeiture, it is "up to the owner to prove that his cash is clean". Normally both civil and criminal forfeiture require involvement by the judiciary; however, there is a variant of civil forfeiture called administrative forfeiture, which is essentially a civil forfeiture that does not require involvement by the judiciary, which derives its powers from the Tariff Act of 1930, and empowers police to seize banned imported merchandise, as well as things used to import or transport or store a controlled substance, money, or other property that is less than $500,000 value.
According to the Justice Department, there are three main justifications for civil forfeitures:
Since a prosecutor can charge a person with a crime in a criminal case and charge his or her things in a civil case, issues such as double jeopardy have been raised. Further, there has been debate about whether seizures of property are considered as a fine or as a punishment in a legal sense. The distinction was clarified by the Supreme Court in United States v. Bajakajian, which decreed that a criminal forfeiture could be considered as both a type of fine and a punishment, while a civil forfeiture was not intended as a punishment of a person but rather a "legal fiction of punishing the property". As a result, the court decreed that civil forfeitures that served as remedial were not considered as a type of fine.
The United States Supreme Court has upheld the principle of civil asset forfeiture at the federal level. The Court ruled in Austin v. United States (1993) that such civil forfeiture, treated as punitive actions, are subject to the Excessive Fines clause of the Eighth Amendment. The Supreme Court ruled in Timbs v. Indiana (2019) that protection against excessive fees in civil forfeiture is also incorporated against state and local government.
In addition, there are more than 400 federal statutes that empower police to take assets from convicted criminals, as well as from persons not charged with criminality. Sometimes the seizures happen as a result of different government agencies working together, such as the Internal Revenue Service and the Department of Justice. Police at national and state levels cooperate in many instances according to procedural laws known as equitable sharing. In addition, there are laws that make it difficult for criminals to get dirty money clean by methods of money laundering; for example, law requires that cash deposits greater than $10,000 to a bank account be reported by the bank to the federal government, and there have been instances in which repeated cash deposits under this amount have looked suspicious to authorities even though they were done legitimately, leading to civil forfeiture seizures directly from a bank account. What has caused controversy is when the property of innocent persons is seized by police who believe that the seized items were involved in criminal activity.
A June 2019 study found that more equitable sharing funds do not translate into more crimes solved, nor improving overall police effectiveness. Such funds also do not lead to less drug use. And forfeiture rates are linked to local economic performance, increasing when the local economy suffers, suggesting that such tactics are more geared towards raising revenue, not fighting crime.
Although there are accessible statistics of seizures at the federal level, it often happens that the totals of forfeitures from both criminals and innocent owners are combined; for example, one report was that in 2010, government seized $2.5 billion in assets from criminals and innocent owners by forfeiture methods, and the totals of assets seized incorrectly from innocent owners was not separated statistically. Further, since the United States is a federal republic with governments at both the national and state level, there are civil forfeiture seizures at the state level, which are not tracked and recorded in any central database, which make it difficult to make assessments, since state laws and procedures vary widely. According to The Washington Post, federal asset forfeiture in 2014 accounted for over $5 billion going into Justice and Treasury Department coffers, while in comparison, official statistics show that the amount stolen from citizens by burglars during that same year was a mere $3.5 billion.
Civil forfeiture begins when government suspects that a property is connected with illegal drug activity, and files a civil action:
Properties that can be confiscated include real estate property such as a house or motel, cars, cash, jewelry, boats, and almost anything suspected of being related to the manufacture and sale and transportation of illegal controlled substances, such as:
One method of intercepting funds is by highway interdictions, typically along highway routes suspected to be used regularly by drug smugglers, often between Mexico and the United States.
News media have reported many examples:
If a passing motorist does not sign a waiver and it becomes recorded as a legal case, the case names are often unusual. In a civil forfeiture case, the asset itself is listed as the "defendant". For example, one case was titled State of Texas v. One Gold Crucifix, based on a traffic stop in which a woman was pulled over, no charges were filed, but this item of jewelry was seized. Another case name was United States v. $35,651.11 in U.S. Currency.
The Washington Post analyzed 400 seizures in 17 states that were examples of equitable sharing arrangements. Police stop motorists under the pretext of a minor traffic infraction, and "analyze" the intentions of motorists by assessing nervousness, and request permission to search the vehicle without a warrant; however, of the 400 seizures studied by The Washington Post, police did not make any arrests.
Cash has been seized in peculiar circumstances. For example, New York businessman James Lieto's $392,000 in cash was seized by federal authorities, since his legitimate funds mixed up with illegal funds in an armored car that was seized by an FBI probe. Lieto had to wait until the government's criminal case was finished before he could get his money back, which took considerable time, and caused considerable financial hardship and stress.
Police have broken into homes. In March 2012, in the middle of the night, without a warrant, New York City police burst into the home of Gerald Bryan, ransacked his belongings, ripped out light fixtures, arrested him, and seized $4,800 of his cash, but after a year, the case against him was dropped. When Bryan tried to get back his money, he was told it was "too late" since the money had already been put into the police pension fund. Victims of forfeiture often find themselves faced with fighting in a "labyrinthine" procedure to get their money back.
In May, 2013, IRS agents seized $32,821 from the account of a restaurant owner in Arnolds Park, Iowa, on suspicion of tax evasion, but the seizure was contested by lawyers from the Institute for Justice.
The U.S. Drug Enforcement Administration has been seizing cash from passengers on domestic flights. Agents seized $209 million in cash from travelers at the 15 busiest airports from 2006 to 2016, according to an investigation by USA Today. Agents seized $82,373 from a passenger, transporting her father's life savings, while boarding a domestic flight, despite no indication of criminal activity or drug use or charges, leading to a lawsuit to get the funds returned.
Police can seize not only cash from cars but real estate such as a person's home. For example, homes have been seized even if someone other than the homeowner on the premises committed drug crimes without the owner's awareness. If the IRS suspects that property is involved with crime, or has been produced as a result of crime, then it has a pretext with which to seize it. From 2010 to 2013, two motel owners were under constant threat of their property being seized after there were incidents of drug selling on the motel premises. A judge ruled in 2013 that the owners could keep their motel since the owners did not know about the illegal activity and took all reasonable steps to prevent it.
Police seized a house on the pretext that it was being used for selling drugs, after a couple's son was arrested for selling $40 worth of illegal drugs. In another case, homeowners Carl and Mary Shelden sold their house to a man who was later convicted of fraud, but because of the real estate transaction, the Sheldens got caught up in a 10-year legal battle that left them "virtually bankrupt"; after years, they finally got back their house but it was in badly damaged condition; the Sheldens had done nothing wrong.
In Detroit, men suspected of hiring prostitutes had their automobiles seized. An owner's sailboat was taken after he was caught with a negligible amount of marijuana. Members of the Bergen County Prosecutor's Office were charged with fraud after knowingly selling counterfeit goods at an asset forfeiture auction.
The government can seize money directly from a bank account. One way this happens is when there are large numbers of cash deposits that government investigators suspect are structured as a way to avoid deposits exceeding $10,000, since deposits greater than that amount must be reported to the federal government. But it can happen that legitimate businesses have regular large deposits of cash. In one instance, the Internal Revenue Service waited for large deposits to be placed into an owner's bank account, and then forced the bank by legal means to surrender it to the agency by means of a secret warrant; authorities took $135,000 from Michigan restaurant owners, named the Cheung family, who made cash deposits from their Chinese restaurant. In another instance, a businessman in New Jersey made repeated cash deposits to save for purchasing a house; each payment was below the $10,000 threshold for reporting to the government, but there were 21 deposits over a period of four months, which caused government to suspect that criminal activity was involved; as a result, the IRS seized $157,000 and the businessman was forced to hire an attorney to get his funds returned. Officials seized $35,000 from the bank account of a grocery store "without any warning or explanation" in 2013.
After police and authorities have possession of cash or other seized property, there are two ways in which the seized assets become permanently theirs: first, if a prosecutor can prove that seized assets were connected to criminal activity in a courtroom, or second, if nobody tries to claim the seized assets. What happens in many instances is that the assets revert to police ownership by default. If a victim challenges the seizure, prosecutors sometimes offer to return half of the seized funds as part of a deal in exchange for not suing. Sometimes police, challenged by lawyers or by victims, volunteer to return all of the money provided that the victim promises not to sue police or prosecutors; according to The Washington Post, many victims sign simply to get some or all of their money back. Victims often have "long legal struggles to get their money back". One estimate was that only one percent of federally taken property is ever returned to their former owners.
Statistical evidence suggests a strong upward trend in recent years towards greater seizure activity. In 1986, the Department of Justice's Asset Forfeiture Fund took in $93.7 million; in 2008, it took in $1 billion. Much of this growth happened in the previous decade; one analysis suggested that seizures had grown 600 percent from 2002 to 2012. From 2005 to 2010, government seizures of assets from both criminals as well as innocent citizens went from $1.25 billion to $2.50 billion. In 2012, over $4.4 billion were seized through forfeiture as compared to an estimated $4.7 billion Americans suffered as losses from criminal burglary. Federal authorities seized over $4 billion in 2013 through forfeiture, with some of the money being taken from innocent victims. In 2010, there were 15,000 cases of forfeitures. Over 12 years, agencies have taken $20 billion in cash, securities, other property from drug bosses and Wall Street tycoons as well as "ordinary Americans who have not committed crimes". One estimate was that in 85% of civil forfeiture instances, the property owner was never charged with a crime. In 2010, there were 11,000 noncriminal forfeiture cases. In 2010, claimants challenged 1,800 civil forfeiture seizures in federal court.
Proponents argue that civil forfeiture tactics are necessary to help police fight serious crime. It is seen as a vital and powerful weapon in the continuing battle against illegal drugs, and effective at discouraging criminal activity. It makes it easier for law enforcement to fight organized crime when they had trouble imprisoning offenders, since they could deprive them of their property and income when it is much harder to prove their guilt in a court of law.
The head of the asset forfeiture section of the Department of Justice said that civil forfeiture of cash from innocents was insignificant compared to the "thousands of traffic stops" that bust major drug money couriers.
Civil forfeiture has been used to restore money stolen by fraud and other schemes by corrupt politicians. Civil forfeiture targets cybercrime, fraud, and scams in high finance at Wall Street, and money-laundering on a global scale. It enables police to have sufficient power to "return money to crime victims" in instances of swindling or fraud. Civil forfeiture laws were helpful in enabling authorities to seize and return swindled funds by the Bernard Madoff fraud.
Proponents argue that government has sufficient safeguards in place so that individuals can challenge seizures if the need arises. Justice William H. Rehnquist said in a Supreme Court decision that federal forfeiture in drug-related cases was not a punishment but served nonpunitive purposes such as encouraging people to be careful that their property was not used illegally. A lobbyist for the Maryland State Police named Thomas Williams argued that bills to require police to keep better records of seized property would cost law enforcement more time and money, and that trying to track seizures by multi-agency task forces would not be easy. Proponents say that when claimants contest the seizures, they rarely win back their money, suggesting that the "system is working properly". Proponents say the system is monitored to make sure seizures are properly done. In addition, the funds enable police forces to equip themselves further for more effective crime prevention; for example, a $3.8 million drug bust let officers equip their cars with $1,700 video cameras and heat-sensing equipment for a seven-member force.
Critics include citizens, defense attorneys, and advocates for civil rights. They point to serious instances of abuse in which innocent owners have been victimized. Critics are from both sides of the political spectrum, from left-leaning groups such as the American Civil Liberties Union and right-leaning groups such as The Heritage Foundation. The main criticisms of civil forfeiture proceedings are as follows:
There have been numerous reports in the media about systemic abuse of civil forfeiture. USA Today described it as "an increasingly common—and utterly outrageous—practice that can amount to legalized theft by police". Reporter Sarah Stillman writing in The New Yorker interviewed numerous police officers, lawyers, prosecutors, justices and plaintiffs around the United States and found that many had reservations that innocent Americans were being abused. The New Yorker published a "sprawling investigation" about how cities abuse civil forfeiture to "bolster their cash-strapped coffers by seizing the assets of the poor, often on trumped up charges". Comedian and political commentator John Oliver devoted a presentation to a satirical exposure of civil forfeiture in 2014.
Organizations working for reform, as well as helping individual victims, include the Institute for Justice, a libertarian nonprofit law firm in Washington, D.C., which works to end civil forfeiture abuse. It has helped numerous clients recover property seized by the government. The Institute of Justice is helping one forfeiture victim sue the federal district court as well as the mayor, district attorney, and police commissioner in Philadelphia. Scott Bullock, senior attorney at the Institute for Justice, advocates that civil forfeiture should be abolished except for use in enforcing maritime and customs laws, and require that any seizures be linked to criminal convictions of specific people. If that is not possible, Bullock recommends that seized revenues be placed in neutral funds such as drug treatment efforts, that standards of proof for law enforcement be raised to ensure that police provide "clear and convincing evidence" of wrongdoing, that the burden of proof should be moved to government to prove wrongdoing, that seized assets should be tracked such that information is easily accessible by the public, and that the equitable sharing arrangement be abolished. Sometimes victims turn to the American Civil Liberties Union (ACLU) for legal assistance in winning back their seized property.
There has been opposition to civil forfeiture in some lower courts. There have been attempts by lawmakers to introduce legislation to prevent abuses based on civil forfeiture procedures; one proposal was to raise the standard of proof necessary before property could be seized, and require government to prove that an owner of property was involved in an illegal criminal activity before such seizures could happen. There have been class action lawsuits against authorities, such as one in East Texas by black and Latino drivers; the suit alleges that police took $3 million from 2006 to 2008 in 140 separate incidents. One reform effort is to require authorities to keep better records about seized assets.
In 2015, the New Mexico legislature outlawed civil forfeiture. Also in 2015 a number of criminal justice reformers, including the Koch family foundations and the ACLU, announced plans to advocate the reduction of asset forfeitures due to the disproportionate penalty it places on low-income wrongdoers; the forfeiture of private property in such cases often results in the deprivation of the majority of an individual's wealth.
As civil forfeiture may not be allowed, a new practice has emerged: By classifying valuables such as cars, cellphones, and wallets with cash as evidence, the police can keep them and make it very difficult and time consuming to get them back. The police can sell the items after 120 days.
The Drug Enforcement Administration (DEA) has been using civil forfeiture as one way of funding their efforts to combat the use of illegal drugs, including marijuana, which continues to be illegal to possess under Federal law as of 2019. According to government figures, the DEA collected $18 million in 2013 as part of its Cannabis Eradication Program. There have been occasions where police involved in a traffic stop claim they smell marijuana in order to get probable cause to search a vehicle without a warrant and start civil forfeiture proceedings. Proponents in favor of legalizing marijuana have objected to this practice, which includes DEA seizures of properties in which marijuana is used and sold. A bill has been proposed in the United States Congress to eliminate this source of funding. As more states progress towards legalizing marijuana for medical use and for recreational use, there are more businesses to sell marijuana, sometimes called dispensaries or "weed shops". A report in The Guardian in 2015 suggested that such shops operated in a "tricky gray zone", so that even in the 23 states where medicinal cannabis is legal, such dispensaries can be "wiped out by a single visit from law enforcement". While state law may recognize such establishments as having a legal purpose, federal law does not recognize this, and conflicting interpretations can emerge, which can result in properties being confiscated. It has sparked controversy and, in some instances, public outrage.