The concept of civil forfeiture is largely ignored by the millions of Americans who don’t realize the government has the legal power to confiscate their property without charging them with a crime. For most of the history of our republic, this hasn’t been a significant problem. But 30 years ago, significant changes were made in federal forfeiture procedures that allow the government to spend forfeiture revenues at its own discretion, which gives it a perverse incentive to make use of forfeiture in order to generate funds.
To date, 42 states have followed suit with their own similar versions of forfeiture laws, and the result has been a massive increase in forfeiture activity over the past three decades.
This is cause for serious concern.
Civil forfeiture is predicated on the legal fiction that inanimate objects can somehow be held responsible for criminal activities in which they are used. This leads to strange cases with titles like “State of Texas v. One 2004 Chevrolet Silverado.” Once the object is the subject of a forfeiture case, the proceedings do not hold the government to the same evidentiary standards as criminal cases. Where a criminal defendant must be proven guilty beyond a reasonable doubt, a civil forfeiture case is determined by a preponderance of the evidence, which is a much easier legal threshold to cross.
In addition, the presumption of innocence in criminal cases does not apply in civil cases. If your property is the focus of a forfeiture case, the burden of proof is yours, not the governments, to prove your innocence. This can often cost more than the property is worth, since the right to counsel that is fundamental in criminal cases is also absent in civil forfeiture. If your find yourself embroiled in a forfeiture case and you can’t afford a lawyer, you have no recourse. You’re also very likely to lose.
The federal government has also created a circumstance known as “equitable sharing,” which allows the states to use the federal government’s authority to seize the property, only to have the feds kick back 80 percent of the money from the seizure back to the state. Most states are not required to specify how these funds are used, so forfeiture becomes a simple way to create off-budget revenue that can be spent with little or no oversight.
Utah has one of the better civil forfeiture laws, thanks to 2000 citizen ballot Initiative B for reforms and protections — curtailing “policing for profit” (conducting forfeitures, then pocketing the sales proceeds), placing burden of proof on the government and providing defenses for owners against unjust forfeitures.
In 2004, Senate Bill 175 reversed one of the key reforms, allowing the aforementioned “equitable sharing.” And in 2013, a last-minute, lengthy-documented House Bill 384 passed unanimously with practically no debate, being touted as a “re-codification” of existing. Rather, it made government payments optional, capped those payments at 20 percent of the property’s value and weakened the prompt return of seized property.
Earlier this year, Utah legislators learned of 2013’s real changes to civil-forfeiture laws and restored the removed property rights by passing — also unanimously — SB 256.
Solving these problems requires increased accountability and transparency with regard to the use of forfeiture funds. But the larger issue demands careful consideration, too. People need to be aware that their fellow citizens are having their property taken from them without any remuneration and without being convicted of criminal activity. That’s a ready-made recipe for abuse of power and corruption.