In a recent hearing on “The Need to Reform Asset Forfeiture,” the Senate Judiciary Committee focused on how the property of ordinary citizens could be seized without them even being charged with a crime. Because current forfeiture laws treat property as “guilty until proven innocent” and often subject innocent owners to oppressive legal costs, Congress should make this issue a top priority for reform.
Senator Chuck Grassley (R–IA), Chair of the Senate Judiciary Committee, called several witnesses to testify about the legal structure and practical effects of civil asset forfeiture, both for law enforcement agencies and average citizens.
Presumption of Guilt
The most prominent witness was Senator Rand Paul (R–KY), who explained how civil asset forfeiture allows law enforcement agencies to seize property that they suspect is being used to commit a crime or that represents profits from criminal activity. Instead of charging a person with a crime, the government charges the property and requires the owner to prove in court that the property was not, in fact, the proceeds of a criminal endeavor or that he or she was unaware that the property was being used to facilitate a crime.
 
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Paul noted that although civil asset forfeiture was originally intended to combat high-level organized crime, the program has since targeted ordinary citizens who did not engage in any criminal activity. Worse, as Paul argued, civil forfeiture “turns justice on its head—our current laws presume you are guilty until you can prove your innocence.”
High Legal Costs
Darpana Sheth, an attorney with the Institute for Justice, testified that innocent owners face steep legal costs if they wish to reclaim their seized property. She noted that once the government establishes by a preponderance of the evidence that the property was somehow connected to a crime, an innocent owner must prove in court that he was neither aware of nor consented to the unlawful use of his property. This procedure essentially presumes that the owner is guilty until proven innocent. To make things worse, the legal fees to recover seized property can easily exceed $20,000.
Motel Caswell
The committee also heard the testimony of Russ Caswell, a victim of civil asset forfeiture. His father built Motel Caswell in Tewksbury, Massachusetts, in 1955, and Caswell and his wife took it over in 1984. During the entire time they ran the hotel, a handful of people (15 arrests out of 125,000 room rentals) staying at the motel were arrested for drug-related crimes. Caswell and his wife had always cooperated with law enforcement authorities, including giving them free rooms when they were engaged in “stakeouts.” But instead of thanking the Caswells for their years of cooperation, the Tewksbury police and the U.S. Department of Justice seized the entire motel and attempted to forfeit it to the government pursuant to civil asset forfeiture laws.
“I have never been charged with or convicted of a crime my entire life. No one in my family, or any of our employees, has ever been involved in a crime at the motel concerning drugs,” Caswell stated. “To us, the forfeiture case seemed ludicrous.”
Despite the fact that Caswell and his wife never allowed drug activity in their motel nor personally engaged in any illegal behavior, law enforcement officers claimed the motel was being “used in the commission of a crime.” The Caswells almost lost their business to the government. Fortunately, the Institute for Justice successfully represented the Caswells in court to reclaim their seized property.
Sharing of Seized Assets
The committee also heard testimony from Chuck Canterbury, national president of the Fraternal Order of Police. Canterbury agreed that some changes to asset forfeiture were necessary, but warned that ending the government’s equitable sharing program, which is designed to allow sharing of the proceeds of seized assets between federal and state agencies, would dramatically affect local law enforcement officials. In his view, any revision to civil asset forfeiture laws that ended equitable sharing “is simply not sound public policy.”
Perverse Incentives
While Senator Grassley agreed that civil asset forfeiture, and even equitable sharing, is a useful tool for law enforcement agencies, he expressed concern about the potential for abuse, stating:
Under adoption and equitable sharing, state and local law enforcement can seize property and ask the federal government to “adopt” the seizure as if it had been carried out by federal officials. If this occurs, the state or locality receives 80% of the value of the very property that they arranged to have forfeited. This incentivizes police to seize particular property to obtain a direct financial reward. When this occurs without pursuing a criminal conviction or even an arrest, the chances rise that the rights of innocent people will be violated.
Legitimate Concerns
This concern is well founded. As Heritage has written, the equitable sharing program is ripe for abuse because it incentivizes law enforcement agencies to base their continued employment and budgets on their ability to seize cash and property. Some police departments have even been trained by civil forfeiture experts on how to seize property that will yield the most cash to their budgets. This goes against every founding principle of the American justice system and undermines the legitimacy of the rule of law.
Serious reform of civil asset forfeiture laws is needed, and it is encouraging that the Senate has begun taking the first step toward a solution.