Reason tells us that government poses no threat to law-abiding citizens — that local and federal authorities are primarily necessary to protect society from mischief makers. At the same time, the Constitution reminds us that government itself must be restrained. Hence conservatives jealously guard the rights our founders carefully fortified. This vigilance fuels our justice reform efforts and directs our attention to civil asset forfeiture — a legal procedure by which the government can seize assets from citizens suspected of criminal activity and subsequently take ownership, even if they have not been charged. This program is in danger of morphing into a government-sanctioned shakedown of innocent citizens.
The mechanics of civil asset forfeiture can be hard to follow because its abuses are rooted in circular reasoning. So it’s helpful to trace out how the statutes work, whom their misuse hurts, and what lawmakers can do to reform the practice.
For law enforcement and other government agencies, civil asset forfeiture should function like a Swiss timepiece, an instrument of accuracy and precision to be applied to private property only when that property is the fruit or tool of a crime.
Instead, civil asset forfeiture functions more like a broken clock that’s happens to be right twice a day. Because U.S. and state statutes are written too broadly, government agents are able to confiscate private property on the basis of inferred proximity to suspected crimes. Even small sums of cash — sometimes as little as a few hundred dollars — are fair game for forfeiture. The alleged justification for this is that large amounts of cash imply criminal activity and are, therefore, eligible for forfeiture as elements of a crime.
The one-two-punch of many civil asset forfeiture cases is that if mere property ownership can denote criminality, that ownership can then nullify a person’s property rights. In a third blow to justice and reason, victims of forfeiture find themselves legally hamstrung when they attempt to recover their property. Even if these individuals are innocent, the burden of proof remains on their shoulders. They are required to sue the government to regain their money or possessions, but are often unable to retain a lawyer to do so — because the government controls their assets.
A brief case study from a landmark investigation paints a representative picture of many forfeiture victims. Law enforcement in Alabama pulled over a Chinese-American small business owner from my home state of Georgia for speeding. The officers then relieved him of the $75,195 in cash relatives had given him to purchase a restaurant in Louisiana. The individual successfully challenged the government’s case in a struggle that siphoned off thousands of his dollars in legal fees over ten months.
Civil asset forfeiture cases such as this focus disproportionately on non-whites. They serve as reminders that we cannot allow minorities to become the canaries in the mine of bureaucratic mischief.
Nor can we tolerate the targeting of law-abiding citizens at large. The IRS — every citizen’s bosom friend — has long used anti-structuring statutes to seize money through civil asset forfeiture proceedings. Just this month, the Treasury Inspector General for Tax Administration investigated this practice and found that 91 percent of the cases it examined involved money that was legally obtained.
Should anyone feel unmoved by this revelation, consider that the parallel of this government overreach would be a prison population in which only 9 percent of inmates were actually guilty.
Civil asset forfeiture proceedings tyrannize minorities as well as individuals who engage in benign cash exchanges. Government authorities have parlayed this practice into a cottage industry at local, state, and federal levels. Federal and state agents often collaborate to maximize the success of their cases, with federal authorities redistributing the fruit of forfeitures to local and state law enforcement.
The fundamental bugaboo of forfeiture law is that it lacks necessary protections for property owners. Civil asset forfeiture may afflict a limited number of Americans, but it actively threatens the Fourth Amendment rights of every citizen. Lawmakers must curb the abusive potential of these statutes by writing better legislation. Fortunately, the House is now considering a bill that would prohibit seizures based solely on structuring and another that would increase the burden of proof that the government must produce as well as allow victims to recover attorney fees in unjustified forfeiture cases.
These steps complement holistic justice reform and — since the IRS is one of the biggest forfeiture zealots under Uncle Sam’s umbrella — underscore the immediacy with which conservatives are approaching tax reform.
Congress provides the executive branch with the authority it needs to protect Americans from crime. But the House and Senate remain responsible for constraining that authority when the executive finagles abuses within the legal system — something that has become a hallmark of civil asset forfeiture. Property rights are essential to our constitutional system; the government must resist the temptation to scuttle liberty in favor of expedience.
Doug Collins, a member of Congress representing Georgia’s 9th district, is Vice Chair of the House Republican Conference.