Should a criminal be able to keep a car used to traffic drugs or the profits generated by organized crime?
Of course not. There’s little debate that the plunder criminals obtain as a result of their crimes should rightfully be seized by law enforcement.
But did you know that the government has the ability to take your personal property without even charging you with any wrongdoing? And that even if you are exonerated you still might not get your property back?
Civil asset forfeiture is provided for by law, and governments use it to seize property suspected of involvement in certain criminal activities.
It is important to note that there is a difference between seizure and forfeiture. Seizure is the taking of property to be used as evidence in a forthcoming criminal trial.
Under civil asset forfeiture, property is kept by the government permanently, regardless of guilt or innocence.
Civil asset forfeiture was originally created to combat smuggling in the early days of the republic.
The practice was later repurposed to intercede in organized crime such as drug trafficking by taking the objects of crime and the instruments used in crime and repurposing them to fight crime.
Too often today, civil asset forfeiture is being used by governments to supplement their departmental budgets — in other words, as an income stream.
This is what happened in Tenaha, Texas, a town close to the Texas-Louisiana border. Between 2006 and 2008, about $3 million in property was seized by and forfeited to the Tenaha Police Department.
Most of the people from whom property was taken were never charged with any crime, since there was no evidence of wrongdoing. The proceeds were used to build a new police station and, even more alarming, to reward police officers who generated high revenue.
In current practice, the owner of the forfeited property does not have to be convicted or even charged with a crime for property to be taken and kept by the government.
It is as if the property itself is guilty, rather than its owner. And it only gets worse from there.
In most cases, the burden of proof is on the owner to prove that the property was not involved in a crime, which completely upends our longstanding tradition of presumption of innocence.
In the meantime, or if the owner is unsuccessful, government keeps the property, even when the property is crucial to the owner, such as a personal vehicle necessary for continued employment.
In many cases, the costs to challenge the forfeiture exceed the actual value of the seized property, so many people do not challenge the forfeiture.
And even for those who attempt to get their property back, the success rate in the courts is very low.
A cynic might observe that the justice establishment has an inherent conflict of interest in such proceedings, because even the courts benefit from the civil asset forfeiture income stream.
Though seemingly well intended, clearly civil asset forfeiture is in dire need of reform at the state, local and federal levels.
For governments to have incentives to seize private property without regard to due process is an outrageous affront to property rights, civil rights and the rule of law.
The good news is reform is coming.
The legislature in Michigan reined in the practice of civil asset forfeiture, passing legislation unanimously, while other states like Ohio, New Mexico, Pennsylvania and Montana are considering similar measures.
At the same time, Congress is debating several bills to reform the broken system.
On Feb. 9, the Institute for Policy Innovation will be holding a policy conference on civil asset forfeiture in our offices in Irving, where we will discuss the potential for civil asset forfeiture reform in Texas.
In a state like Texas, where we claim to value property rights and the rule of law, it’s time for civil asset forfeiture reform to come home.
Our liberty and our civil and property rights demand no less.
Tom Giovanetti is president of the Institute for Policy Innovation, a public policy research organization in Irving.