Op-ed: Guilty until proven innocent
How the government uses civil asset forfeiture to steal from its citizens
As much as Congress chatters about criminal justice reform, civil asset forfeiture remains a legalized way for the government to violate Fourth Amendment rights by seizing personal property without a warrant, trial or any other constitutional protections guaranteed for citizens.
Americans should be paying attention, especially because the practice harshly impacts low-income families and students.
In criminal cases, law enforcement seizes property based on a prior conviction or warrant and dictated proof of the property’s involvement in a crime. Therefore, the prosecutor must prove that assets seized were somehow involved in the case at hand to a judge or jury.
Civil forfeiture works differently—it allows the government to seize homes, cars, businesses, cash and even debit card information (starting in Oklahoma in 2016) simply based on the officer’s suspicion that it is involved in a crime. Later in court, cases are rarely filed against the accused. Before an owner can retrieve the assets seized by law enforcement though, they must prove the item’s innocence. Yes, this means that property is deemed guilty rather than a human being. This runs against all for which the American judicial system stands.
Any cash and private account information can be seized if it is deemed a “suspicious” amount at the officer’s discretion. This includes funds used for tuition purposes or rent. For students, this should be especially concerning since the national student loan debt reached $1.2 trillion in April 2015. They cannot afford to have their fragile funds wrongfully taken.
Consider the case of Charles Clarke. He was 24 years old when law enforcement seized $11,000 in college savings from him that he physically possessed on hand at the Cincinnati/Northern Kentucky airport in 2014. Police claimed that his luggage smelled like marijuana, and thus gave the officers grounds to take all of Clarke’s money. According to Clarke, this money was saved from financial aid, various jobs and education benefits he received from his mother’s military status. Not only was he not carrying any drugs with him at the time, he never sold drugs and was using the money to pay for college. Clarke’s life was ruined and his entire future delayed because his assets were wrongfully seized. His case is still open in the United States District Court for the Eastern District of Kentucky, and he has yet to see his money again.
Unfortunately, cases like Clarke’s are not uncommon. Due process has been reinstated in several states such as New Mexico, Nebraska, Florida, Maryland and more in civil forfeiture law since 2014.
This practice is difficult to comprehend in a country where due process exists. According to the Fifth Amendment, the government shall not deprive anyone of, “life, liberty, or property without due process of the law.” Furthermore, Fourth Amendment property rights notes that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”
In other words, if the Department of Justice followed the U.S. Bill of Rights, law enforcement should be receiving some type of warrant in order to seize property under a process that fairly protects the rights of a person accused of a crime. Instead, these rights have been undermined for the mistaken impression that abiding by them interferes with public safety. Nothing could be further from the truth.
All this sounds really wordy, but college students should care. Cases like this affect everyone, especially lower-income citizens. Law enforcement is bound to an incredibly low standard of proof, meaning that they can take property based on the mere suspicion that someone is guilty of a crime. To combat their inclinations, innocent property owners must hire expensive attorneys to fight their cases in court. Remember, law enforcement seizes assets without any prior conviction or warrant.
Nothing can change until Congress overhauls the federal system. State and local law enforcement use federal law to override their respective state laws in order to continue seizing assets for profit. This profit, known as “equitable sharing,” is a tool where law enforcement can obtain assets and keep up to 80% of the funds as long as they split their earnings with the DOJ, incentivizing officers to seize significant amounts of property. According to the ACLU, state and local law enforcement seized over $2.5 billion using asset forfeiture. As the Institute for Justice’s Policing for Profit report notes, equitable sharing generated about $4.7 billion for the agencies.
Several bipartisan members of the U.S. Congress introduced modest reforms to the federal civil asset forfeiture process in May. The DUE PROCESS Act, in both the House and the Senate, would increase the burden of proof to “clear and convincing evidence” for the federal government, grant representation to those contesting charges of civil forfeiture in court, allow for easy recovery of legal fees when the property owner wins in court, codify the DOJ’s administrative changes to the IRS’s forfeiture practices. Although it does not address equitable sharing, the DPA moves congressional reformers in the right direction.
Changing a system where police can steal from individuals with no form of due process is not a partisan issue. It is critical for all citizens, including students who have massive amounts of debt and cannot afford to hire expensive lawyers to regain their life’s savings. All Americans should rally around changes to the civil asset forfeiture process, for it reinstates the Bill of Rights into a system that allows law enforcement to police for profit.
Krista Chavez is a junior in the School of Public Affairs. She is a Criminal Justice Reform, Defense, and Immigration Policy Associate with Americans for Tax Reform in Washington, DC.