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Civil Asset Forfeiture

6 min read

Part of Crime, police and punishment.

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Every episode (4)

Who argued it

Mike Greenberg · Bill Maurer · Lucy Steigerwald · Mike Riggs

Due Process · Property Rights · Fourth Amendment · Policing for Profit · Drug Policy

Background

Definition and mechanics

Civil asset forfeiture is a process by which law enforcement confiscates private property belonging to citizens who have not been convicted and perhaps not even formally accused of a crime. Property may be taken where officers suspect or have probable cause to believe it was used in the commission of a crime or is the fruit of that crime. There is no trial, no jury, and no conviction — only suspicion. Once property is seized, the burden shifts to the owner to initiate a lawsuit to recover it. Cops Are No Better Than Criminals (2011)

Bob Zadek, an attorney who does commercial lending, described the process as turning the relationship between government and citizen upside down: the owner must sue the government to get back property the government wrongfully took. Awaiting the Verdict in Timbs v. Indiana (2018) Guest Sam Gedge noted that standards of proof vary from state to state, but rarely is the government held to the beyond-a-reasonable-doubt standard of criminal cases; typically it need only show that the property was connected to a criminal offense — that the property itself is somehow guilty. Awaiting the Verdict in Timbs v. Indiana (2018)

Bill Maurer of the Institute for Justice described forfeiture as a civil lawsuit brought against the property itself, so criminal procedure standards do not apply and there need not be guilt at all. Cases carry names like State of Arizona v. A 1978 Pontiac Fiero. He traced the practice to attempts to combat piracy, when it was difficult to determine who had stolen property and how it came to be on a particular pirate ship. Abusive Fines and Fees (2022)

Policing for profit and incentives

A recurring theme is that forfeiture generates revenue for the agencies that seize property. Maurer said municipalities used forfeiture proceeds to buy margarita machines and to fund expensive training sessions at resort towns, calling the system basically a scam and a significant revenue source for police departments. Abusive Fines and Fees (2022) Bob Zadek cited a case in which a district attorney used proceeds to buy football tickets to college football games, and that was found to be a law enforcement purpose. Cops Are No Better Than Criminals (2011)

Economist Brian D. Kelly, who has worked on forfeiture since 2010, undertook a data-intensive study of equitable sharing — the program through which the federal government partners with state and local police — over roughly a twelve-month effort with support from the Institute for Justice. Brian D. Kelly on the False Promise of Policing-for-Profit (2019) Zadek described equitable sharing as a program by which the federal government, lacking its own police force, induces local law enforcement to enforce federal drug law by allowing those agencies to keep what they confiscate. Kelly agreed that the point is to secure state and local cooperation with the feds, though some of the money goes to the federal government. Brian D. Kelly on the False Promise of Policing-for-Profit (2019)

Mike Riggs, a guest from Reason magazine, framed the problem in terms of incentives: legislators beefed up forfeiture laws in the early ’80s, police departments and federal agencies began making money from them, and law enforcement groups then lobbied to expand them. He argued that civil forfeiture, unlike criminal forfeiture, punishes people without trial — a circumvention of due process. Cops Are No Better Than Criminals (2011) Zadek added that in a criminal case the government must prove guilt by clear and convincing evidence, while in civil forfeiture it need only show a preponderance of the evidence, and that raising the standard to the criminal one would eliminate most abuses. He also objected to paying officers on a commission basis, comparing it to a meter maid paid a percentage of every ticket written. Cops Are No Better Than Criminals (2011)

State abuses and reform

Zadek noted that the Hyde Amendment, enacted in 2000 by Representative Henry Hyde, offered substantial protection to property owners whose property was taken by the federal government, but that it affects only federal law. The abuses, he said, are now at the state level, where no statute protects property owners. He cited an Institute for Justice 50-state survey grading state civil forfeiture statutes, in which 47 of 50 states received a D or F; California received an overall D and an F for the way states evade federal and state law. Cops Are No Better Than Criminals (2011)

Riggs identified two reform approaches: changing incentives for law enforcement agencies and pressuring legislators, and reframing the issue publicly by calling civil asset forfeiture theft. Cops Are No Better Than Criminals (2011) Zadek called for eliminating the profit motive — what the Institute for Justice calls “policing for profit” — and raising the standard of proof. Cops Are No Better Than Criminals (2011) By 2022, Zadek observed that many groups had joined the Institute for Justice in fighting forfeiture and that the practice was on the run as legislatures moved to repeal or control it. Abusive Fines and Fees (2022)

Across episodes

The topic recurs across five episodes spanning 2011 to 2023. The 2011 episode with Mike Riggs emphasizes incentives and the mechanics of forfeiture; the 2018 episode with Sam Gedge, recorded while awaiting the verdict in Timbs v. Indiana, focuses on burden-shifting and the legal fiction of guilty property; the 2019 episode with Brian D. Kelly presents data on equitable sharing; the 2022 episodes with Bill Maurer add the piracy origins and municipal spending examples; and the 2023 episode with Mike Greenberg revisits the subject. The episodes show no development in the underlying argument — the same critique of burden-shifting, incentives, and equitable sharing recurs — though Zadek notes in 2022 that the reform coalition has grown and legislatures have begun to act. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

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