Under civil asset forfeiture laws in the United States, police can seize your property if they can connect it, even remotely to criminal activity, with drug crime being the most common. Even if you were completely unaware of the crime, your property may be taken.
Radley Balko, a blogger and reporter for the Washington Post, has brought to the public’s attention many people whom he regards as innocent victims of civil forfeiture abuse.
On July 28th, U.S. Congressman Timothy Walberg (R-Mich.) introduced a bill aimed at reforming federal asset civil forfeiture laws. Also, last month on the Senate side, Sen. Rand Paul (R-Ky.) introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which similarly seeks to reform the way the government seizes property suspected of being involved in criminal activity.
“When you tell [people], in America, the government can take you home, your car, your boat, without convicting or even charging you with a crime, most people cannot even believe it,” said Scott Bullock, senior attorney, who directs the Institute for Justice’s campaign against civil forfeiture. He spoke July 29, at the Heritage Foundation in Washington, D.C., on the topic, “Arresting Your Cash: How Civil Forfeiture Turns Police Into Profiteers.”
For people to get their property back once it’s been confiscated, they usually must go to court and show they legitimately earned the property. “So if it’s your cash that’s been seized, you have to find the paycheck or paystub,” Balko explained.
Sometimes the property itself is alleged to have been used in the commission of a crime, like an automobile seized for its use in a drug deal. You would have to prove that you didn’t drive the car—the so-called “innocent owner defense”—but even that may not be enough to get your property back, according Balko.
Punishing the Property
A woman’s car was subject to forfeiture and seized by police because her husband used it in the services of a prostitute, without her knowledge or consent. The U.S. Supreme Court ruled 5-4 in Bennis v. Michigan (1996) that in civil forfeiture cases, the state of Michigan was not required to provide an innocent owner’s defense, and she lost her car and was not entitled to compensation, although no one said she did anything wrong.
However, most federal and state forfeiture laws provide for an innocent owner defense, according to attorney Steven Kessler, who has written about and defended many cases regarding civil and criminal forfeiture. Nevertheless, Kessler thought the Bennis case set a bad precedent by the high court that regarded “Forfeiture had nothing to do with the owner’s culpability. The property was the offending party and, consequently, the property, not its owner, was being punished.”
The proponents of reform argue that current standards for seizing property make it too easy and tempting for government prosecutors and police to abuse their powers and cite many examples of unfair application of the law. The Fifth Amendment asserts that no person shall “be deprived of life, liberty, or property, without due process of law.”
The 14th Amendment has nearly identical wording.Those who want the laws reformed say that police and prosecutors are abusing their civil property forfeiture powers with impunity. The legal environment for forfeiture cases is decidedly on the side of law enforcement and prosecutors, they say. In only six states does the government have the burden to establish that the person is guilty in order to confiscate all types of property, according to the Institute for Justice. In 38 states, the burden for all forfeitures, including one’s home, is on the owner.
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