A Really Evil Law: Civil Forfeiture

Last August I started a series of posts about troublesome features of laws that were absurdly complicated or that prescribed disproportionately heavy punishment, usually as a result of legislators trying to show they were “tough on crime.”

In a homage to Gideon’s post on the “most evil legal principle,” I called my series “Evil Lawmaking.” Unfortunately, that kind of hyperbole makes it hard to come up with a title when I want to talk about a genuinely evil law.

After I posted my first entry on the evils of free punishment, Scott Greenfield commented on his blog that he was troubled by the free punishment of civil forfeiture. I responded:

I’m doing a series of posts on “Evil Lawmaking.” I didn’t mention forfeiture as one of the free punishments because (a) it really falls into the category of profitable punishments, and (b) forfeiture is so evil it will be getting a post all to itself.

I never got around to writing that post.

In part, it was because I had been writing about relatively minor issues like profitable punishment, over-use of license suspension, piling on the punishments, administrative punishment, and the ridiculous state of DUI laws. To include forfeiture in that list is to trivialize it, and it’s not a trivial thing.

Fortunately for all of us, Scott Greenfield hasn’t forgotten about the forfeiture issues, as he proves with a terrific post that illustrates the issue with the sad story of one forfeiture incident as described on Law.com:

The K____s set aside about $1 million to pay attorneys by taking out a second home mortgage and cashing certificates of deposit. But prosecutors claimed the money was ill-gotten gains. They charged Kerri K____ stored the medical equipment in the family’s garage. Her husband was indicted after she refused a plea deal. Prosecutors said he knew about the conspiracy and managed the illegal profits.

Even after being stripped of the money, the K____s didn’t qualify for a federal public defender. U.S. Magistrate Judge James M. Hopkins in West Palm Beach concluded the couple could liquidate their 401(k) retirement accounts and their children’s tax-deferred college funds — at a cost of a $200,000 tax penalty — to pay for a cut-rate lawyer.

[The defendant’s name has been obscured at her request.]

The second reason I didn’t write about forfeiture is because it’s a very complicated issue. Actually, part of it is very simple: Law enforcement agencies accuse you of a crime and send men with guns to take all your stuff.

What makes it complicated is the legal explanation of why the courts don’t think it’s unconstitutional. Much legal fiction is involved, as Scott Greenfield explains: 

The assets usually aren’t forfeited before trial, but seized and held pending the forfeiture proceeding.  This gets a little technical, as forfeiture is an in rem proceeding against the property, rather than an in personam proceeding against the owner of the property. But since it has a lesser standard of proof, probable cause, the outcome of a criminal proceeding, with the higher burden of beyond a reasonable doubt, has no effect. 

Got that? When the government takes your property, they’re not after you, just your property. So it’s all OK. Even better, if you win the criminal case, the government still doesn’t have to give your stuff back.

I’m not making this up. It really is totally legal for the government—our government, here in America—to do this to you.

Which brings me to the third reason I didn’t get around to writing about forfeiture: The subject enrages me, which makes it hard to pay attention and think clearly.

I first heard about civil forfeiture back it the late 1980s. It grew out of what was arguably a misuse of the RICO laws, and I naively thought that if enough people knew what was going on, Congress would feel pressure to amend the law to prevent further abuse.

Then the Pittsburgh Press published their excellent “Presumed Guilty” series in 1991, which blew the story wide open, and it was even worse than most of us knew. Law enforcement agencies were taking people’s stuff and keeping it for themselves, using the proceeds of forfeiture to buy new equipment and pay for more personnel. This was a deep conflict of interest that distorted police priorities and rewarded them for all kinds of abuses.

Even more disturbingly, informants who tipped police off to big forfeiture opportunities could sometimes expect a cut of the action. So, for example, an airport employee who spotted a bunch of cash in somebody’s luggage might get to keep 10 percent. (Remember, no one has to prove a crime occurred, so the government gets to take the money right away.) This sounds like something out of Stalinist Russia. I thought for sure that major reform was coming.

That was seventeen years ago, and there’s been no real improvement. Civil forfeiture has worked its way from drug crimes to white collar crimes to seizing the cars of drunk drivers, all without proof of guilt.

I don’t understand it. We’ve had protests about the Rodney King verdict, immigration, and the World Trade Organization. The Million Man March advanced on Washington to protest Republican social policies. But hardly anybody seems to care about this massive totalitarian abuse that’s going on all the time.

Well, some of us do. One of Greenfield’s commenters had this to say about it:

I cannot believe a human being can graduate from college, graduate from law school, pass a bar exam, and say with a straight face that pre-conviction asset forfeiture is constitutional. I only hope the federal and state prosecutors who are this dishonest will rethink their positions after their deaths, when their skins are on fire and one of Beezlebub’s tentacles is affixed where their genitals used to be.

He sounds a bit crazy, but I can’t fault the sentiment.