Civil Forfeiture and its U.S. Surge: How a Reagan Era Act Propelled a Highly Corrupt Proceeding

Written By Hannah Cheves

By: Sarah Wejman
Edited by: Tulsi Patel and Payton Hawkins

The presumption of innocence in the U.S. justice system is a cornerstone of democracy. Although not explicitly guaranteed in the Constitution, U.S. Supreme Court precedents such as Taylor v. Kentucky (1978) derived their rulings from the Due Process Clause of the Fifth Amendment. [1] However, a frequently unheard of procedure known as civil forfeiture upends these core principles. Under civil forfeiture, law enforcement officers have the right to seize an asset from a civilian if they have a “preponderance of the evidence” that the individual’s property was involved in a crime. In ordinary language, this legal standard is understood as “more likely guilty than not,” which, compared to other tests under the law, is very lenient. In this procedure, the person is not charged with the crime; rather, the property is, because property does not have the same rights as people, so guilt is assumed. If the individual would like to contest the seizure, the burden falls on them to go to court and prove their property was not involved in the alleged crime. In many cases, the costs of legal fees exceed the value of the property, so even individuals whose property was unjustly seized will relinquish it. At this point, the property gets sold to the government. Even if the property was found to be innocent at a later date, there is no remedy for its return. 

Another component of modern civil forfeiture, a practice known as equitable sharing, has consequences that have transformed forfeiture into a corrupt profit-making enterprise. State and local law enforcement agencies can directly collaborate with federal agencies on a forfeiture case (“joint investigative” forfeiture) or transfer seized assets to federal law enforcement while independently investigating state crimes (“adoptive” forfeiture), even if federal agents were not directly involved. [2] It does not matter whether the suspected crime is at the state or federal level, as in either case, federal forfeiture standards apply when lower level agencies are participating in equitable sharing. After the forfeiture case is finalized, a portion of the proceeds is redirected to state and local agencies in recognition of their collaborative efforts. In many cases, up to 80 percent of proceeds go to the state agencies to fund their departments; in 2019, the total amount distributed from the federal government to local and state law enforcement departments was $333.8 million. [3]

Modern civil forfeiture as we know it was spurred into practice by a 1984 Reagan administration law named the Comprehensive Crime Control Act (CCCA). The Act was devised as a result of the ongoing war on drugs that began in the 1970s, involving a global anti-narcotics campaign pushed by the U.S. attempting to reduce illegal drug trafficking into and throughout the country. [4] Through various Congressional hearings in the 1970s and 80s, law enforcement informed policymakers that the current forfeiture provisions were insufficient to allow them to act effectively. Although civil forfeiture was codified in law before 1984, it was primarily used for customs investigations or during Prohibition in the 1920s to curb related organized crime. [5] Between this time and the CCCA’s passing, two additional policies were enacted: the Comprehensive Drug Abuse Prevention and Control Act (1970) and the Psychotropic Substances Act (1978). Respectively, they broadened the eligible property for seizure to include drugs and related equipment, and also cash. [6] The CCCA then proceeded to fortify civil forfeiture extensively by expanding the offenses eligible for seizure, particularly drug-related crimes. It also created what was arguably the most dangerous part of civil forfeiture, the Equitable Sharing Fund. [7] As previously mentioned, this provision allows law enforcement agencies to directly profit from the assets that they seize. 

What started as a specialized proceeding quickly transformed into a widespread law enforcement practice that has struggled to achieve its goals. Despite the CCCA setting out to target large crime operations, an Institute for Justice study based on 21 states found that the median forfeiture is valued at $1,276, with this figure being even lower in other states. [8] In response to calls for change, many states have adopted reforms to their civil forfeiture laws, such as increasing transparency or raising the standard of proof for when assets can be seized. [9] However, despite the abundance of evidence pointing to the corruption of civil forfeiture on multiple levels, only four states have abolished it and solely use criminal forfeiture, which requires a conviction before property can be taken. 

Although legislation has fallen short in ensuring justice for victims of civil forfeiture, the court system could be the key to future meaningful change. In Timbs v. Indiana (2019), Tyson Timbs’ $42,000 Land Rover was forfeited after he was arrested for transporting heroin. Although Timbs was criminally charged and given a prison sentence, Indiana sought to open up a separate civil case so it could seize his vehicle as well. [10] The case made its way to the U.S. Supreme Court, which ruled that the Eighth Amendment's Excessive Fines Clause can be incorporated under the states under the Fourteenth Amendment. In her opinion on the case, Justice Ruth Bader Ginsburg voiced that the seizure of the Land Rover was excessive compared to the crime; the unanimous decision remanded the case to the Indiana Supreme Court to reflect this. [11]

In conclusion, civil asset forfeiture is one of the least-known yet most corrupt practices of law enforcement. In addition to court action, such as Timbs v. Indiana, abolishing civil forfeiture is undoubtedly a promising measure to take; evidence from existing states that have followed this path is quite positive. One might assume that removing civil forfeiture would take a toll on crime, but reality proves otherwise; a study from New Mexico, the first state to abolish civil forfeiture, found that state crime rates did not worsen compared to control states that still have forfeiture. [12] Considering the clear and numerous downsides of civil forfeiture, abolishing it at the state and national levels is the crucial next step in making our law enforcement system more just. 

Notes:

  1. Taylor v. Kentucky, 426 U.S. 478 (1978)

  2. Dick Carpenter II, “Generating Revenue through Civil Forfeiture,” NYU Law Review, 2023, p. 215, https://nyulawreview.org/wp-content/uploads/2023/05/NYULawReview-Volume98-Carpenter.pdf.

  3. Lisa Knepper et al., “Policing for Profit,” Institute for Justice, 2020, https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf.

  4. J.D Ho, “Civil Asset Forfeiture: Overview,” EBSCO Information Services, 2024, https://www.ebsco.com/research-starters/law/civil-asset-forfeiture-overview.

  5. Brittany Hunter, “Pirates, Mob Bosses, and the War on Drugs: The Crazy History of Civil Asset Forfeiture,” Foundation for Economic Education, April 9, 2019, https://fee.org/articles/a-history-of-civil-asset-forfeiture-in-america-pirates-mob-bosses-and-the-war-on-drugs/.

  6. Hunter, “Pirates.”

  7. Comprehensive Crime Control Act, S.1762, 98th Cong. (1984)

  8. Knepper et al., “Policing for Profit,” 6. 

  9. Knepper et al., “Policing for Profit,” 31.

  10. Ho, “Civil Asset Forfeiture.”

  11. Timbs v. Indiana, 586 U.S. __ (2019).

  12. Jennifer McDonald, Harrison Weeks, and Dick M. Carpenter, “Does Civil Forfeiture Fight Crime? Evidence from New Mexico,” Sage Journals, November 3, 2024, https://doi.org/10.1177/07340168241285569.

Bibliography:

Carpenter II, Dick. “Generating Revenue through Civil Forfeiture.” NYU Law Review, 2023. https://nyulawreview.org/wp-content/uploads/2023/05/NYULawReview-Volume98-Carpenter.pdf

Comprehensive Crime Control Act, S.1762, 98th Cong. (1984)

Ho, J.D. “Civil Asset Forfeiture: Overview.” EBSCO Information Services, 2024. https://www.ebsco.com/research-starters/law/civil-asset-forfeiture-overview.

Hunter, Brittany. “Pirates, Mob Bosses, and the War on Drugs: The Crazy History of Civil Asset Forfeiture.” Foundation for Economic Education, April 9, 2019. https://fee.org/articles/a-history-of-civil-asset-forfeiture-in-america-pirates-mob-bosses-and-the-war-on-drugs/.

Knepper, Lisa, Jennifer Mcdonald, Kathy Sanchez, and Elyse Pohl. “Policing for Profit.” Institute for Justice, 2020. https://ij.org/wp-content/uploads/2020/12/policing-for-profit-3-web.pdf.

McDonald, Jennifer, Harrison Weeks, and Dick M. Carpenter. “Does Civil Forfeiture Fight Crime? Evidence from New Mexico.” Sage Journals, November 3, 2024. https://doi.org/10.1177/07340168241285569.

Timbs v. Indiana, 586 U.S. __ (2019).

Hannah Cheves
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