The federal government’s civil asset forfeiture laws have been the target of well-deserved and long overdue criticism from conservatives, libertarians, and even progressives. As FreedomWorks recently noted in From High Seas to Highway Robbery, federal civil asset forfeiture laws, throw the presumption of innocence, a cornerstone of the American legal system out the window.
The Fifth Amendment states, without any ambiguity, that “[n]o person shall… be deprived of life, liberty, or property, without due process of law. But federal forfeiture laws ignore due process because these cases are handled in civil court as opposed to criminal court, where proof beyond a reasonable doubt is required to secure a conviction. Under federal forfeiture laws, federal prosecutors need only show a "preponderance of the evidence," a very low standard, to subject property to forfeiture. And in a stroke of legal fiction, seized property is guilty until proven innocent by the property owner, who may never be charged with a crime.
In a recent report, the Cincinnati Enquirer explained that fighting a forfeiture can be a difficult and costly process, using Antoinette Lattimore as the focal point of the story. A couple years ago, Lattimore was traveling through Dayton, Ohio on her way to Arizona. She was carrying nearly $20,000 in cash with which to purchase art. She was pulled over by a local law enforcement official, who worked with a federal drug task force, and the cash was seized based on the suspicion that it was connected to illicit activity.
"I had no idea something like this could happen in America," Lattimore told the Cincinnati Enquirer. "I’ve never been arrested before in my life. I even could prove that it was my money but that didn’t matter." Lattimore was not charged with a crime, but state and local law enforcement are incentivized to seize cash and property from even the innocent because, through the Department of Justice’s Equitable Sharing Program, they can receive up to 80 percent of the proceeds from forfeitures.
This handy chart from the Heritage Foundation outlines the bureaucratic process even innocent people must go through to get their property back from the federal government (click here to view an enlarged version):
Between 2003 and 2011, the Department of Justice’s Equitable Sharing Program received $11 billion in revenues and disbursed more than $3.1 billion in payments to federal, state, and local law enforcement, according to the Government Accountability Office. Much of the remaining funds are used "in support of asset forfeiture activities," including the costs associated with "seizing, evaluating, inventorying, maintaining, protecting, advertising, forfeiting, and disposing of property seized for forfeiture."
Rep. Thomas Massie (R-Ky.), whose district is based in Northern Kentucky, blasted federal forfeiture laws, which, he rightly says, are unconstitutional. "This is legal robbery … and is completely unconstitutional," Massie said. "I don’t care what good they can do with that money if it was acquired unconstitutionally."
Rather than fight a lengthy battle with an uncertain outcome, Lattimore settled with the federal government. She received $11,000 of the wrongfully seized cash back, but she kept approximately $8,000 after legal expenses. The cost burden on innocent property owners, who are not entitled to an attorney under federal forfeiture laws, is a deterrent. "It could easily cost someone $10,000 in legal fees to get $10,000 back," Massie noted, "given all the red tape they have to fight." Many walk away from what they see as an unwinnable fight, or, like Lattimore, settle to get at least some of their money back.
In January, FreedomWorks released a letter of support for the Fifth Amendment Integrity Restoration (FAIR) Act (H.R. 540/S. 255). The bill, sponsored by Sen. Rand Paul (R-Ky.) in the Senate and Rep. Tim Walberg (R-Mich.) in the House, raises the standard of evidence required to subject property to forfeiture to "clear and convincing," the highest in civil court, and places the burden of proof on the government, where it belongs.
The FAIR Act requires a hearing after 14 days, where the government must establish probable cause for the seizure, or return the property to its owner. Importantly, the bill also eliminates the profit motive by directing proceeds from federal forfeitures to the Treasury Department’s general fund.
Whether the FAIR Act is the vehicle for federal forfeiture reform or some other yet to be introduced bill, Congress has to act to ensure that forfeiture laws are being used only against their intended targets, such as drug kingpins and traffickers, and not innocent people like Antoinette Lattimore.