Civil forfeiture assumes guilt

Under current law, your assets can be seized by law enforcement without your every being charged with a crime.

In August 2012, law enforcement stopped Mandrel Stuart, the owner of a small barbecue restaurant in Virginia, for a minor traffic violation. During the routine traffic stop, $17,550 that Stuart had earned from his restaurant and intended to use for supplies and equipment was seized. Stuart was never charged with a crime and there was no evidence of criminal wrongdoing. He eventually got his money back, but since he lacked the cash to pay for overhead, he lost his business.

This was possible under a process known as civil forfeiture. In many jurisdictions, including Maryland, the law allows the government to seize private property if it can meet the preponderance of the evidence standard — that it is more likely than not the property was involved in criminal activity — without convicting or even charging the individual with a crime.

Law enforcement must maintain its ability to prevent criminals from bearing the fruits of illegal behavior, but innocent individuals should not be at risk of having their property seized This balance can be reached by eliminating civil forfeiture so that no individual can be ordered to forfeit their property without first being convicted of a crime.

Asset forfeiture laws are designed to protect the public and deter criminal behavior by eliminating some of the financial gains of crime. However, criminals are not the only ones who have their property confiscated. The Baltimore Sun previously reported that in 2012, 48 percent of civil asset forfeiture cases closed in Maryland resulted in the government keeping property without a conviction. Eighty percent of people from whom the federal government seized property for forfeiture were never charged with a crime.

Civil forfeiture differs from criminal forfeiture, in which an individual must be convicted of a crime to lose his or her property. Unlike in criminal cases, property owners who cannot afford legal representation are not appointed counsel, and even for those who can afford an attorney, the value of the assets seized is often less than the cost of legal representation and missed work. Further, the burden of proof is on the owner of the property; to contest a seizure in Maryland, an individual must prove that the property was wrongfully seized or that the owner had no actual knowledge of the action. As a result, many civil forfeitures go uncontested. Only one-sixth of seizures examined as part of an investigative series by The Washington Post were legally challenged.

Earlier this year, U.S. Attorney General Eric Holder made a highly publicized announcement that the Department of Justice would prohibit "adoption," a process in which state or local agencies seize property on their own and then ask the federal government to pursue forfeiture under federal law. This move, although a step in the right direction, only accounts for a small percentage of civil forfeitures.

To protect innocent Americans, policymakers should end the practice of civil asset forfeiture and require a criminal conviction in order to seize an individual's assets. Short of eliminating civil asset forfeiture, increasing system transparency and accountability can provide safeguards against abuse. Requiring law enforcement agencies to report data on seizures and forfeitures including the type of property seized, type of alleged criminal activity associated with the seizure, outcome of the criminal case and type of forfeiture procedure would bring accountability to the system.

These reforms would not remove the ability of law enforcement to seize ill-gotten criminal gains, and there is little empirical evidence that civil asset forfeiture has led to any reduction in overall criminal conduct. Recent attention to the issue has led to proposals in a number of states, including Maryland.

Innocent until proven guilty is a bedrock principle of the American legal system. The practice of civil asset forfeiture puts the right to be presumed innocent until proven guilty under assault by allowing the government to seize assets without convicting, or even charging, an individual with a crime. It is time to end this assault on private property rights by eliminating civil forfeiture and bringing accountability and transparency to the system.

Cara Sullivan is the director of the Justice Performance Project at the American Legislative Exchange Council and author of the report, Criminalizing America: How Big Government Makes a Criminal of Every American. Her email is csullivan@alec.org.

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