Editorial: Stop Seizing Assets Without Charges

Sunday, January 25, 2015
While America’s shamefully high incarceration rate is the most visible result of the ruinous war on drugs that the nation began waging in the 1970s and ’80s, almost as notorious is civil asset forfeiture, a practice that was greatly expanded during that time.

Under civil forfeiture, law enforcement authorities can seize property including cars, cash, other valuables and even homes from people without ever bringing criminal charges against them, much less securing a conviction, and the owners must prove their innocence in order to recover their property. Often the expenses of doing so are so high that the seizures are not challenged. If this appears to stand the concept of due process on its head, that’s because it does.

No one knows how much property has been seized in this fashion by federal, state and local law enforcement agencies or what they do with it, because they apparently are not required to keep track of the seizures and report them to any central authority. But The Washington Post has reported that $2.5 billion has been seized from motorists and others since the 9/11 terror attacks under just one program that targets cash moving along highways.

While civil forfeiture ostensibly targets drug traffickers and terror suspects, the reality is that many ordinary people have had their property seized without being criminals or, in some cases, without even being suspected of being criminals. An Iowa restaurant owner, for instance, had $33,000 in her bank account seized by the IRS when she unknowingly ran afoul of a federal law that makes it a crime to deposit less than $10,000 in a bank account if the intent is to evade federal reporting requirements that kick in at that level. While the restaurant owner was manifestly not a terrorist, drug lord or money launderer, she did regularly make small deposits from her cash-only Mexican restaurant. No crime was alleged, but the federal government backed down only when The New York Times started asking uncomfortable questions.

There have been many such abuses, including an infamous one in which a Philadelphia couple’s home was seized after their son made $40 worth of drug sales from the porch. In other jurisdictions, cars and boats can be seized in drunken-driving cases, in some instances from owners who were not driving the cars when the offense occurred. A prosecutor in New Jersey, according to the Times, uses civil forfeiture to seize cars not only in drug cases, but also in shoplifting and statutory rape cases as well.

What accounts for the zeal with which law enforcement agencies pursue such a problematic course? Civil forfeiture is a financial bonanza for them. Police and prosecutors in many jurisdictions (although not Vermont) get to keep some or all of what they seize through civil forfeiture and have a relatively free hand in how to use the proceeds. The revenue stream funds all sorts of equipment and other priorities outside of the normal budget process. Hence the incentive to seize before inquiring too deeply whether the asset is truly tied to a crime.

Amid a number of newspaper stories detailing outrageous abuses, legislation has been proposed in Congress to rein in the practice, and U.S. Attorney General Eric Holder earlier this month announced new rules to limit federal participation in state forfeiture actions as the first step in a comprehensive review. How comprehensive it will be remains to be seen. Loretta E. Lynch, the United States Attorney for the Eastern District of New York, the president’s nominee to succeed Holder, finally, and perhaps reluctantly, last week returned $447,000 that was seized from a family-owned Long Island candy and cigarette distributor after two years in which no criminal charges were filed. The owners maintained that their business is a cash-intensive one and that, after having three bank accounts closed because their large deposits were triggering extra paperwork for the banks, they began trying to keep their deposits under $10,000. They were stonewalled for two years as they tried to retrieve the money and managed to hang on only because one of their vendors extended $300,000 in credit.

We’re not exactly sure why a new law is needed to curb or even eliminate this practice. There’s a relevant clause in the Constitution that speaks eloquently to the question: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

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