“Innocent until proven guilty” is the bedrock of American jurisprudence. Civil asset forfeiture, a legal process in which the government confiscates your property without a guilty verdict, turns that justice on its head.
Take the case of the Motel Caswell in Tewksbury, Massachusetts. In 2009, owner Russ Caswell found himself the target of a civil forfeiture claim by the federal government and his local police department, even though he had never been accused – much less convicted – of a crime. It should also be noted that, historically, the motel had a good working relationship with the police, even providing them with free rooms for stakeouts and contacting them about suspicious activities.
The government’s basis for seizing the property? Fifteen “drug-related incidents” over a 14-year period – out of around 196,000 rooms rented.
In its reporting on the case, WBUR recounted how a DEA agent testified that it was his job “to seek out targets for forfeiture by watching television news and reading newspapers” and to check the Registry of Deeds after discovering properties where drug crimes had taken place. The Motel Caswell, with a more than $1 million value and lack of mortgage, became the focus of a combined effort between the DEA and the local police, according to the agent.
If the Caswells had lost, the federal government and local police department could have split the proceeds of selling the property under so-called “equitable sharing” – with the police department keeping up to 80 percent of the profit.
With the help of the Institute for Justice, which took on their case pro bono, the Caswells triumphed in court. But not every story gets such a happy ending.
Unfortunately, the Trump administration is moving in the wrong direction on this issue – Attorney General Jeff Sessions wants to increase civil forfeitures. Sessions reversed a 2015 ban on adoptive seizures, which occur when state law enforcement officers circumvent state limitations on civil forfeiture by turning seized property over to federal officials for forfeiture in exchange for up to 80 percent of the proceeds of the forfeited property. The Department of Justice has perversely incentivized police to turn civil forfeiture into an industry by allowing police to keep most of the proceeds from forfeiture. In 2014 alone, the federal government took more cash and property from Americans than did burglars.
A major problem with civil forfeiture is that it does not reflect the fundamental presumption of innocence that is vital to our nation’s criminal justice system. The Fifth Amendment protects Americans from being deprived of their property without due process of law, yet civil forfeiture allows the government to take an individual’s property without first proving guilt. To add insult to injury, as Justice Clarence Thomas recently wrote, “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”
Civil forfeiture must be reined in, which is why I led my colleagues in a bipartisan letter to the Department of Justice asking for Attorney General Sessions to rescind its expanded use. Additionally, earlier this year, I introduced the Fifth Amendment Integrity Restoration (“FAIR”) Act. This bill would restore the principle of “innocent until proven guilty” and would require the government to bear the burden of proof that a property owner knew his property was used in criminal activity before it could be confiscated. It would remove the profit incentive of civil forfeiture and restore the motivation to law enforcement of public safety, not financial rewards.
Finally, the bill would eliminate the federal equitable sharing program and ensure that law enforcement cannot ignore state law.
We should not let criminals keep the profits of their crimes, but we must also uphold the fundamental idea that the government should not be able to deprive Americans of their right to property before proving guilt.