The government can take your stuff
Q: Can the government take your property without a conviction? How is that legal?
Civil forfeiture is when the government seizes the money, homes and cars of people engaged in criminal activity. The money is mostly used to boost the budget of law enforcement agencies. Historically, civil forfeiture was used infrequently until it was developed as a tool in the war on drugs in the 1980s. It expanded in use to seizing the cars of intoxicated drivers, or the proceeds from activities ranging from illegal gambling to securities fraud.
The reason this is legal is that, while people have constitutional rights, property does not. Taking property without a criminal conviction is possible because the government is proceeding “in rem” against the property and not the individual. The resultant burden for the government to seize property is lower than it would be to convict an individual. The key is whether the property is sufficiently connected to a criminal activity. People can contest the seizure but this can take time, money and a legal hearing with no guarantee that the property will be returned.
There is a real benefit to this approach. Civil forfeiture allows law enforcement to act against criminal organizations by seizing their assets, even if they cannot yet proceed criminally against anyone. When used appropriately, civil forfeiture is a significant power that allows law enforcement agencies to combat organized criminal activities, especially illegal drugs, by snatching away the criminals’ tools and money. Criminal proceeds are turned to a good purpose by supporting police.
However, the potential for abuse is quite real. Civil forfeiture incentivizes law enforcement to seize property whenever possible so as to bring in revenue. Law enforcement agencies may become dependent on the money from civil forfeiture, and pressure officers into maintaining high levels of property seizure. Smaller law enforcement agencies may be dependent on the money from seizures to operate. This creates a negative incentive for enforcement agencies to pursue cases that generate income at the expense of others. It has also led to cases where people who are not guilty of a crime have lost significant money or assets.
The U.S. Supreme Court has recognized some limits on this power. In Timbs v. Indiana (2019), the Court held that the 8th Amendment, which prohibits “excessive fines,” applies to state civil forfeiture cases. There are also due process limitations on the power that require that people be given a minimum level of process before the government can confiscate personal property. However, that is a low bar. In a recent case, the U.S. government held a man’s truck for nearly two years while he waited for a hearing. What the process must be is still a bit unclear, unless and until Congress codifies the rules with a new law.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd.
This article originally appeared on Palm Beach Post: THE CIVICS PROJECT: Can government take property without a conviction?
