Your property can be taken by the police for no reason—and it’s guilty until you prove it innocent.

By: Dan Smith

Civil asset forfeiture is an area of law which permits local, state or federal law enforcement to seize your money or other property (car, home, etc.) if they suspect you might be involved with a crime.

The practice is nicknamed, “Policing for Profit,” by critics who see that law enforcement officials have highly questionable incentives in this arrangement. If police come across money (or other assets) in nearly any situation, they may take it and there’s almost nothing the owner can do about it. Your money or property is presumed guilty whether or not you are charged or convicted of a crime. Some estimates say that’s the case more than 80 percent of the time.

Even more egregious is that the police get to keep the funds if you don’t initiate the complicated and expense legal process to prove your property innocence within 270 days (per New York’s law).

So, the police are clearly incentivized to profit from such situations. They find the money and then they are the judge, jury, executioner and beneficiary of the taken property.

It’s wrong on a great many levels.

Many law enforcement officials feel that civil forfeiture is an important tool for them, particularly in the War on Drugs—where they feel they can cripple narcotics distribution operations by taking perpetrators’ cash.

Such an explanation runs into the highly questionable War on Drugs.

Further, the victims of civil forfeiture tend to be the poor and minorities—as they are more likely to be carrying cash when they encounter police. Individuals from these groups are less likely to initiate negative publicity against the police and have the least ability to defend themselves.  

How Is This Even a Thing?

Besides being unjust from the common-sense viewpoint of ‘innocent until proven guilty,’ one can legitimately ask: ‘How is this practice constitutional?’.

The Due Process Clause of the United States Constitution under the Fifth Amendment states:

“No person shall . . . be deprived of life, liberty, or property, without due process of law.”

So, it certainly sounds unconstitutional.  Unfortunately, this practice has not faced a serious constitutional challenge at the Supreme Court in over 40 years (and that case is quite likely no longer applicable). Prosecutors typically yield before the question can reach federal appeals court and since this is a civil proceeding, your property does not have the right to an attorney, making challenging the law quite costly.  

One might ask:  why is the process of seizing funds a civil procedure, when the crimes themselves with which they’re associated almost always criminal or traffic violations? The answers one gets to that question are highly dissatisfying (e.g., a “thing” cannot commit a crime). But cutting through the legal bull, it seems to be related to the fact that it’s easier for the police to keep your property under this lower standard of proof and our legal system is often about making policing easier on the police.

What’s also ironic is that when people do fight and get their property back, the police often don’t give back or repay what was taken, much less face any punishment. The money for restitution often comes out of general taxpayer funds—so the police really face no penalty for being wrong. Taxpayers’ lose, as usual.

These clear police abuses have been written about more and more in recent years. And some states have rewritten laws to curb some abuses. But much of it is window dressing. President Obama’s DOJ used this tool widely—much more than any past administration, to the point that more money was taken by police in a given year than was taken by burglars committing crimes.  Under some pressure for civil rights groups, Obama announced the practice would be curbed, but then sadly reversed many of those rule changes when he came under pressure from powerful law enforcement groups who profit from the seizing of people’s property.

President Trump has fully backed the practice and his Attorney General, Jeff Sessions,is aggressively using it, and will likely beat Obama’s records. As I write this in March 2018, the DEA is about to hold an auction to sell off $25 million worth of Bitcoin, primarily seized via cases of civil asset forfeiture where no charges were filed.

The bottom line is that the police like it. And in this country, the police get the benefit of the doubt. The police are highly organized and make a lot of money from this practice.  And no public official wants to appear ‘soft on crime.’ So, while the practice is heinous and corrupt and while there have been attempts to reduce the practice, it largely continues.

New York Is An Average Offender of Rights

The Institute for Justice, who regularly defends victims of forfeiture abuse (having won dozens of such cases), rates New York State as an average offender of people’s civil rights in this area, giving us a “C” grade.  Among other factors influencing that grade: New York law enforcement gets to keep 60 percent of the property they seize (the remainder is sent to other agencies), New York’s standard of proof for keeping the funds (“clear and convincing evidence”) in trial is higher than standard civil proceedings, but lower than “beyond a reasonable doubt”—as in criminal proceedings.

However, New York has been particularly opaque about its forfeiture activities. In 2013, a rare disclosure from the NYPD, via being forced to by Freedom of Information filings, showed that they’d seized many tens of millions of dollars from New Yorkers, all with no Due Process. In reality, no one knows how much money has been taken—the NYPD complained to a judge that if they tried to figure out how much, their computer systems would crash.

Statewide information is even harder to come by.

New York has made some strides to investigate and potentially reduce abuses. In 2017, the New York City Council passed a law to demand civil forfeiture data from the NYPD. This led to the NYPD agreeing to new rules limiting seizures in February 2018.  

New York Can Do Much More to Improve

New York State Police and local police, including the NYPD, can do more to track their seizures, to give the public better information about how much the police are seizing and what is happening with the funds.

Ending the failed War on Drugs would eliminate much of the practice.

New York should remove the clearly corrupting incentive of allowing police to keep the property. Police and officials at all levels should turn the property over to the state treasury—the Department of Taxation and Finance, or some other entity unconnected with the seizures or their adjudication. Law enforcement should not be compensated in any way, other than via taxes from their jurisdiction.

Most importantly, New York should require a conviction of criminal activities related to the asset seizure. If a prosecutor can’t make a case or convict the person, why should his or her property be forfeited? It should be returned, with interest.

These changes might be a challenge for the police and the justice system. But “innocent until proven guilty” is a burden which the state must bear. A free society demands it.

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