Asset Forfeiture is Out of Control

Radley’s article from the February issue of Reason exposes how ridiculous things have become. I see the basic argument for asset forfeiture as one of the forms of punishments for convicted criminals. But as implemented, it has created hideous incentives for abuse.

Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show “probable cause” that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof “beyond a reasonable doubt.” Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.

Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently. And in Indiana, where Anthony Smelley is still fighting to get his money back, forfeiture proceeds are enriching attorneys who don’t even hold public office, a practice that violates the U.S. Constitution.

Radley goes on to a good deal of useful reporting and analysis. In a glass half full or glass half empty conclusion, he writes:

Don’t be surprised, then, if forfeiture power expands in the coming years, particularly with respect to financial fraud, tax evasion, and other white-collar crimes. “It’s always a pendulum, swinging back and forth,” Kessler says. “I think we are in the pro-government phase now.”

But over the long term, Kessler is more optimistic about reform. Expanding unjust forfeiture laws to include new classes of people makes the members of those classes aware of just how unfair those laws can be. And the government always overplays its hand. “We all get greedy, and the government is no exception,” he says. “I think that in this climate, they’ll go for too much, and then the courts will rein them in. It’s unfortunate that that’s the way it has to happen.”

Read the rest here.