Justice Clarence Thomas made headlines last month when he criticized civil forfeiture, a notorious police practice that allows law enforcement to confiscate property, even from people who have never been charged with a crime. “This system,” he wrote, “has led to egregious and well-chronicled abuses.”
Hearing one of the Supreme Court’s most conservative members denounce such a shameful violation of our civil liberties gives us hope that civil forfeiture can be drastically curtailed.
To prevent future abuses, I, along with Rep. Tim Walberg, reintroduced the Fifth Amendment Integrity Restoration Act (FAIR Act) in March. The FAIR Act would dramatically reform federal civil-forfeiture laws to respect the American people’s Fifth Amendment rights while maintaining the ability of courts to order the surrender of proceeds from crime.
During the 1980s, as the war on drugs was ramping up, Congress enacted legislation that made it far easier for the federal government to seize cash, cars, and even real estate.
Worst of all, Congress created powerful financial incentives to pursue civil-forfeiture cases.
Once a property is forfeited, federal agencies can auction it off and collect up to 100 percent of the proceeds or retain it for their own use; previously, forfeiture proceeds were directed to the Treasury’s General Fund.
According to a report by the Institute for Justice, a public interest law firm, the Justice Department’s Assets Forfeiture Fund skyrocketed from just under $94 million to more than $4.5 billion between 1986 and 2014.
State and local law enforcement can get a cut of the action, too, thanks to a program that Congress also created in the 1980s. Under “equitable sharing,” police and prosecutors can bypass state laws and collaborate with a federal agency to forfeit property under federal law. If successful, local and state agencies can even receive up to 80 percent of the proceeds.
In a bombshell report released last week, the Office of Inspector General (OIG) found that the Justice Department has funneled more than $6 billion in equitable-sharing funds to local and state agencies since 2000. Several law enforcement officials even told the OIG that the “primary reason” they turn to equitable sharing is because “their states’ forfeiture laws restrict law enforcement’s use of forfeiture.”
Allowing agencies to win bounties from forfeiture has warped priorities for law enforcement.
Russ Caswell knows this all too well. Russ owned a motel in Tewksbury, Massachusetts, which had been run by the Caswell family since 1955. But his small business, which he owned free and clear and was valued at $1.5 million, became a tempting target for equitable sharing.
Although Russ was never charged with a crime, the federal government and local police claimed his motel “facilitated” criminal activity.
The reason? Prosecutors identified 15 “drug-related incidents” that occurred out of 196,000 rented rooms.
It was later revealed that a federal drug agent was found combing through public records, searching for properties the government could seize.
Thankfully, after the Institute for Justice took on his case pro bono, Russ won in federal court and could finally sell his motel and retire.
But the vast majority of forfeiture victims are not so lucky. A sweeping investigation by The Washington Post found over 60,000 cash seizures where police never filed charges. The seizures disproportionately affected African-Americans, Hispanics, and other minorities.
Stories like these are why the FAIR Act is so critical. First and foremost, the FAIR Act would abolish equitable sharing and redirect all forfeiture proceeds to the Treasury’s General Fund. Both reforms would end the perverse incentives that encourage police to pursue cash over criminals.
In order to restore the constitutional right to due process, the FAIR Act would ensure all property owners facing civil forfeiture have a right to an attorney, and it would restore the presumption of innocence. Right now, owners must bear the burden of proof, which flips our constitutional protections on their head.
The FAIR Act is bipartisan, bicameral legislation that has brought together a diverse coalition. The ACLU, Americans for Tax Reform, Campaign for Liberty, Drug Policy Alliance, FreedomWorks, Heritage Action, Institute for Justice, NACDL, and NFIB — organizations from all across the ideological spectrum — have endorsed the FAIR Act.
For far too long, civil forfeiture has ruined the lives of tens of thousands of Americans who have done nothing wrong.
Government agents should not profit from seizing property, especially if that property was taken from the innocent. We call on Congress to support the FAIR Act and end this un-American injustice.
Scott Bullock is president of the Institute for Justice.