Tenth Amendment Center: Asset Forfeiture: An Overview
Asset forfeiture is the process by which government confiscates a person’s property, generally after asserting it was involved in, or the proceeds from, a crime.
Police often seize certain property as part of the investigative process. In many states, they don’t even have to make an arrest. They take any assets they suspect were used in criminal activity or that they believe were proceeds from a crime. For instance, officers could seize a car they suspected was used to facilitate a drug deal, or cash they thought somebody got from selling drugs.
Once police seize property, it becomes subject to the judicial process. If the state prevails, it keeps the assets. How the case proceeds through the legal process depends on the laws of the state.
There are two types of asset forfeiture: criminal and civil.
In a criminal forfeiture process, police must first convict the owner of the property of a crime before the can permanently confiscate their property. After a conviction, prosecutors then must prove the asset was connected to the crime. If they prevail, the state takes permanent control of those assets. This process isn’t particularly problematic. It maintains the requirements a presumption of innocence and due process.
On the other hand, civil asset forfeiture does not require a guilty verdict. In some states, it doesn’t even require the owner to be charged with a crime. In this process, the property itself is literally charged with a crime and is the subject of the legal proceeding. Property owners must prove that the property wasn’t involved in criminal activity. This flips due process on its head, forcing the owner to prove the property’s innocence. This shifts the burden of proof from the state to the citizen.
The federal government and many states have civil asset forfeiture processes. The Institute for Justice says, “Civil forfeiture laws pose some of the greatest threats to property rights in the nation today, too often making it easy and lucrative for law enforcement to take and keep property—regardless of the owner’s guilt or innocence.”
How is asset forfeiture lucrative? In many states, law enforcement agencies get to keep some of all of the proceeds from forfeitures. This creates a perverse “policing for profit” motive. Forfeiture proceeds can supplement department budgets and even serve as an indispensable funding source. As a result, law enforcement agencies become incentivized to seize as much property as possible.
This is a growing movement to reform asset forfeiture laws. Several states have ended civil asset forfeiture altogether, replacing it with a criminal forfeiture process. Some jurisdictions have also addressed the policing for profit motive by barring law enforcement agencies from keeping asset forfeiture proceeds. Instead, the must be deposited in the general fund or some other non-law enforcement related account.
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