Most Americans Unaware Police Can Take Property Without Charges

Almost 3 out of 4 Americans unfamiliar with civil asset forfeiture

Findings of a recent poll suggest that most Americans are unfamiliar with civil asset forfeiture laws, a highly controversial policy that lets police and prosecutors seize private property — including cash, vehicles, and homes — without ever convicting the owner of a crime, or in some cases, even arresting the person.

In a Huffington Post/YouGov survey released Aug. 28, nearly 3 of every 4 respondents (72 percent) answered no when asked if they had heard of the term “civil asset forfeiture.”

A majority wrongly believed that an individual’s property can be seized “only if the person has been charged with and convicted of a crime.”

Only 30 percent (correctly) believed that law enforcement can permanently seize property based on a mere suspicion that it is connected to illegal activity, with no evidence or arrest, much less a conviction. Details on the poll’s methodology can be found here.

The findings indicate that most Americans share the belief of a growing number of experts on both sides of the political spectrum that civil asset forfeiture circumvents the 4th, 5th, and 14th amendments of the U.S. Constitution, among others. (It’s no coincidence that this post on a free-market organization’s website reports the findings of a survey commissioned by the left-leaning Huffington Post.)

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While laws governing civil asset forfeiture vary by state, the majority of states as well as the federal government allow law enforcement officials to seize personal property immediately if they believe it may be connected to some sort of criminal activity.

The standard of proof required to permanently seize property varies by state. Some states require only a preponderance of evidence, which requires merely showing that property is more likely than not connected to illegal activity. Needless to say, this standard falls far short of the “innocent until proven guilty beyond a reasonable doubt" standard required for criminal convictions.

A number of cases of asset forfeiture involve innocent people found to be carrying an amount of cash larger than what is allowed under some official’s arbitrary definition of normal, or traveling routes deemed suspicious. In most states, people who wish to get their seized property back must prove that it is not connected to any illegal activity. The person who fails the difficult task of "proving the negative" may never see the property again.

In effect, the property, not its owner, is charged with a crime, and is considered guilty until proven innocent. Among other distortions, this practice generates bizarre case titles such as United States v. $10,500 in U.S. Currency.

Even when its not impossible, proving a negative can be an expensive undertaking, which means it is especially difficult for people of limited means. In many cases, property owners don’t even try because the effort and expense exceeds the value of what was taken.

The public seems to agree that this is unfair. In the poll, 71 percent agreed that “law enforcement should only be able to permanently seize money or other property if that person is charged with and convicted of a crime.”

Only 7 percent thought that “law enforcement should be able to permanently seize money or other property if they suspect it’s connected to criminal activity, even if no charges have been filed.” Only 13 percent responded that the proceeds of property seizures “should go to the police department’s budget,” while 39 percent responded “it should go to the state’s budget”, and 27 percent said, “it should be used for something else.”

According to the Institute for Justice, about 4 out of 5 states direct a large portion of civil asset forfeitures directly to the police department that made the seizure, as well as to the prosecutors who litigated the case. This practice creates a strong incentive for law enforcement agencies to seize property. Federal forfeiture laws exacerbate this problem by establishing permissive standards.

For example, under federal rules local authorities can keep up to 80 percent of the assets they seize. Critics charge that this has fostered a system they call “policing for profit.”

In other words, law enforcement agencies prioritize the seizure of property that can financially benefit their department above applying neutral administration of the law. An IJ study explores this in depth.

Some states permit the questionable practice to be pushed even further. For example, all the proceeds of civil forfeiture in Michigan goes to law enforcement, skewing the incentives for police to expend effort on forfeiture cases than combating serious crimes.

Between 2001 and 2008, Michigan police collected $149 million in forfeiture revenue. This is one factor that caused IJ to give Michigan’s laws in this area a D- rating. The organization FreedomWorks gave Michigan a D.

While the poll confirms that most Americans are unaware of civil asset forfeiture, their beliefs about what it means are driving reform movements at both the state and federal levels. Republican Sen. Rand Paul of Kentucky has introduced a reform bill with bipartisan support, and the states of Montana and New Mexico recently enacted substantive reforms. In Michigan, California, Pennsylvania and Oklahoma, bills are advancing that move in the same direction.

In enlightened nations, individuals suspected of a crime must be proven guilty beyond a reasonable doubt before they can be punished. This standard should apply to their private property as well. That is the standard New Mexico recently adopted (no forfeiture unless a property owner is convicted), and other jurisdictions, including Michigan, should quickly follow suit.

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See also:

National Conservative Groups Push to End Civil Asset Forfeiture

National Group Gives Michigan a 'D' for Forfeiture Laws

House Judiciary Passes Civil Forfeiture Reform Bills