IJ Briefs Lawmakers on Civil Forfeiture

Last week, the Institute for Justice held a legislative briefing on Capitol Hill to inform Congress about civil forfeiture, a legal proceeding where people can permanently lose their cash, cars, and homes, without ever being convicted of a crime.  It’s a nationwide problem affecting everyone from young Hispanic and African-American men in Philadelphia to motorists driving in Tennessee to landlords in California.

Thanks to lax safeguards, weak protections for property owners, and perverse incentives, asset forfeiture has escalated: in 2011, the Asset Forfeiture Fund at the Department of Justice topped $1.8 billion, the highest ever.  Flush with ill-gotten cash, police have made all sorts of ridiculous purchases with asset forfeiture, including a margarita machine, trips to casinos and Hawaii, and even a $90,000 sports car.

To make the case for reform, IJ’s congressional briefing featured three speakers: Scott Bullock, senior attorney at IJ and co-author of “Policing for Profit;” David Smith, the Justice Department’s “forfeiture guru” back in the 1980s and now a partner at Smith & Zimmerman, PLLC; and Russ Caswell, whose motel was threatened by civil forfeiture—but thanks to IJ, won a landmark victory in federal court to keep his property back in January.

Scott opened by noting that civil forfeiture is a “legal fiction” whereby the state “sues inanimate objects,” not the owner themselves.  So this is why forfeiture proceedings have bizarre names like United States v. 434 Main Street, Tewksbury, Mass (i.e. the Motel Caswell case), State of Texas v. One 2004 Chevrolet Silverado, or Commonwealth of Pennsylvania v. All That Certain Lot Or Parcel Of Land Located At 605 University Drive, State College, Centre County, Pennsylvania And Described With Particularity At Deed Book 1419 Page 0976 In The Office Of The Recorder Of Deeds, Tax Parcel Number 36-014-123A.

To legally seize someone’s property, the federal government needs to demonstrate a “preponderance of the evidence” for the forfeiture, which is much less stringent that the evidentiary standard of “beyond a reasonable doubt” required for criminal convictions. Incredibly, the burden of proof is reversed, meaning property owners have to prove their innocence.

Plus, even in states that have reformed their forfeiture laws, local law enforcement agencies can bypass the state law by cooperating with federal agents.  Under the federal equitable sharing program, local cops can receive as much as 80 percent of the property being forfeited—a major incentive to police for profit.  Clearly, this undermines civil, property, and states’ rights.

Perhaps the most gripping part of the briefing came from Russ Caswell, who detailed how he almost lost his business to civil forfeiture.  The Motel Caswell has been owned by his family since 1955.  But the Tewksbury, Mass. Police Department and the U.S. Department of Justice wanted to seize it on the basis that 15 drug arrests were made on that property…over 14 years.  Considering that the Caswells rent out well over 14,000 rooms a year, this means the government wanted to seize the motel because out of 200,000 rooms rented, 15 of them were used in the drug trade.  Even more outrageous, Russ has never been arrested or charged with any crime whatsoever and he even cooperated with law enforcement in setting up sting operations at his motel. Russ blasted civil forfeiture as “completely un-American.  It’s something you’d expect under a dictator.” 

The Motel Caswell was mortgage-free and worth around $1 million.  Had the government forfeited the motel, under the federal equitable sharing program, the small police department in Tewksbury could have pocketed 80 percent of what Russ’ motel is worth.
To fight the feds, his family was forced to spend and borrow over $100,000, leaving the Caswells’ funds “tapped out.”  Fortunately, IJ learned about his plight and took the case pro bono: “If it weren’t for IJ, I would have lost my motel.”

While civil forfeiture laws were modestly reformed back in 2000 (reform passed both houses of Congress with unanimous consent), as Russ’ personal experience clearly demonstrates, there are still glaring abuses that must be corrected.  To that end, short of completely abolishing civil asset forfeiture, Scott outlined some common-sense reforms:

  • Eliminate equitable sharing
  • Federal officials need to respect state laws on asset forfeiture
  • Raise the evidentiary standard
  • Put the burden of proof on the government for forfeiture proceedings

If enacted, these reforms would help to restore due process and protect property owners.  For more information, check out the Institute for Justice’s policy report on civil forfeiture, “Policing for Profit.”

— Nick Sibilla
Nick Sibilla is a writer at the Institute for Justice

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