by Monica Bergeron, Senior Associate
I. An Introduction to Civil Asset Forfeiture
Tonya Smith and her husband were casino-hopping in West Virginia when the police pulled them over for illegal use of a lane.[1] The officers searched the car for drugs, but finding none, seized $10,478 in cash and gift cards that the couple had with them—without charging either of them with a crime.[2] In another forfeiture case, Isiah Kinloch had just called 911 after a man broke into his home and assaulted him.[3] When the police arrived, they searched his apartment and found one ounce of marijuana and $1,800 in cash.[4] They kept the cash.[5] In both of these cases, law enforcement was able to seize private property under the guise of civil asset forfeiture, the infamous practice “so contrary to a basic sense of justice and fairness”[6] that it is often referred to as “legalized theft.”[7]
Civil asset forfeiture allows a state to seize, sell, and retain part of the proceeds of private property simply based on the assumption that the property was either connected to, or the product of, criminal activity.[8] Unlike criminal asset forfeiture proceedings that occur against an individual after a conviction, civil asset forfeiture proceedings are against the property itself, in rem, regardless of whether the State ever convicted the owner of the alleged criminal activity.[9] Civil asset forfeiture therefore operates on the legal fiction that “the property itself is guilty.”[10] Experts and commentators criticize civil asset forfeiture on many grounds, but primarily because of the high potential for, and evidence of, abuse.[11] In most of the 47 states[12] with civil asset forfeiture, the profits from the forfeited property go directly into the pockets of law enforcement agencies such as the police, the prosecutors, and the criminal court systems.[13] Proponents of the practice argue that it targets career criminals, depriving them of their illegally acquired profits.[14] Studies, however, show that the practice does little to take the bite out of serious crime and disproportionately targets minorities and the poor.[15]