First and foremost, we need to establish what Civil Asset Forfeiture is and how it differs from Criminal Asset Forfeiture. In criminal asset forfeiture, the property of an individual is taken after charges are brought against them. However, in civil asset forfeiture, an individual does not have to be proven guilty or even charged with a crime for police to legally seize your property. How can this be possible in a society of ‘innocent until proven guilty’ and due process protections? It is possible because civil forfeiture laws state that your property does not have the protections you do, so police charge your property itself with the crime. And because the property, not you, is charged with the crime it is not entitled to free legal counsel as we are nor the same due process protections. As a result, the appeals process is so administrative and costly that people often don’t pursue their property.
One man who sought to regain his property was Tyson Timbs who had his Land Rover, with a value of $42,000, seized by Indiana police for a drug charge. This case made its way up to the Supreme Court who overturned the Indiana Supreme Court’s ruling that the eighth amendment didn’t apply to Timbs because it was not yet incorporated to the states. The court unanimously rejected the decision–Justice Bryer went as far to establish that Indiana believed it was completely constitutional to seize a Bugatti for going 5 mph over the speed limit which is a clear and gross violation of the eighth amendment. Another such case was that of Houston’s Anthonia Nwaori who was traveling with $41,000 in cash to Nigeria not knowing that she could not fly with any more than $10,000. The cash was seized by the government and held for seven months despite no formal civil forfeiture filing. When Anthonia was finally given her money back after months of fighting, the government would not pay the interest they owed her. What was she doing with so much case? She was bringing some back to her family and using the vast majority to open a health clinic in Nigeria; truly evil intentions. Perhaps the most troubling thing about these two cases is that they could have been charged with crimes, properly seized their property, and allowed due process to play out resulting in a legitimate forfeiture or a return of their property. That is the danger of this process, it cuts out due process entirely. Due process is the bedrock of our entire legal system, and it is in place to protect against the very abuses carried out by civil asset forfeiture.
In Texas, as across the country, civil asset forfeiture has mixed results. State-wide, Texas police seize $50 million in cash and other assets with two-fifths of those forfeitures beginning with mere traffic stops, 20% not resulting in a criminal charge, and 60% not trying to fight the forfeiture. The same study reported that among four Texas counties–Harris, Webb, Smith, and Reeves–civil asset forfeiture varied from effective proper use to abuse and virtual legal theft. In Harris County, 6% of forfeitures don’t result in a criminal charge and property is kept if charges are dropped. In Webb County, by the Mexican border, traffic stops make up 80% of asset forfeitures and only 30% result in criminal charges. In Smith County, the value of forfeitures is much lower than in other counties and almost always lead to a conviction. Reeves County makes hundreds of thousands of dollars off forfeitures and is described as a hypothetical situation turned reality. The county made nearly $800,000 off four forfeitures. These four cases demonstrate the good and bad of civil asset forfeiture, and Smith County is near the gold standard and uses the tool responsibly and effectively. But sadly the other three demonstrate the reality of forfeitures that we see more often: theft by police departments for money, stripping of civil liberties and the right to privacy, no charges related to the forfeiture, and no return of property if the government doesn’t press charges.
This practice is considered “tantamount to legalized theft”, but that does not do it justice. Its abhorrent violations of due process strike at the heart of our Constitution and legal system. The first test of its unconstitutionality is before the Supreme Court in Tyson’s case and it will focus on the application of the eighth amendment. Our Constitution provides us with due process, the right to privacy, and protection against excessive fines; all of which are violated in any case that does not have a warrant to search your car, fails to press charges when your property is confiscated, neglects to return your property when the charges are dropped or you are found innocent. In line with our Constitutionally guaranteed rights, we are innocent until proven guilty. Civil asset forfeiture assumes guilt even when proven innocent.
Written by: Brannon March, LSPI Intern