Civil Asset Forfeiture: Overview
Civil asset forfeiture is a legal process in which law enforcement can seize money or property believed to be involved in criminal activity without requiring criminal charges or a conviction. This practice operates under the principle of in rem, focusing on the property itself rather than the individual. Civil asset forfeiture is distinct from criminal asset forfeiture, which necessitates a legal conviction and follows more rigorous judicial procedures. The process has generated significant controversy, particularly due to its potential for abuse, as it often targets individuals without due process and can disproportionately affect marginalized communities.
In the United States, civil asset forfeiture gained prominence during the war on drugs in the late 20th century, leading to substantial increases in both the number and value of forfeitures. Critics argue that this practice violates constitutional rights and fosters a policing-for-profit mentality, while proponents assert it serves as an essential tool in combating organized crime. The debate around civil asset forfeiture remains polarized across the political spectrum, with ongoing discussions about reform and regulation at both state and federal levels. Recent legal developments, including Supreme Court rulings, have further influenced the landscape of civil asset forfeiture, prompting some states to implement stricter regulations or even ban the practice altogether.
Civil Asset Forfeiture: Overview
Introduction
Civil asset forfeiture (also known as civil judicial forfeiture) occurs when law enforcement confiscates money or property thought to be involved in crime. No charges, sentencing, or convictions are needed to justify confiscation. Civil asset forfeiture is considered in rem, meaning it targets the property, rather than the person. It is different from in personam (against the person) criminal asset forfeiture, which occurs when assets are taken from someone convicted of a crime and requires formal legal procedures. Civil asset forfeiture—and especially administrative forfeiture, which does not require judicial involvement—is highly controversial due to this lack of necessary charges against the property owners. Owners of forfeited property must appear in court to reclaim their possessions, often at great cost due to legal fees. Meanwhile, the practice is often lucrative for law enforcement.
Civil asset forfeiture has become a particularly contested issue in the United States since the war on drugs, which took on its current form in the 1970s and 1980s and largely continued during the first decades of the twenty-first century, led to a drastic increase in the number and value of forfeitures each year. Critics of forfeiture argue that it violates constitutional rights, targets minorities and the poor, and encourages policing for profit. Proponents argue that forfeiture is a key aspect of fighting crime, particularly the illegal drug trade. The issue is unique in that it has been heavily criticized from both ends of the political spectrum. Yet civil asset forfeiture retains strong support from the law enforcement community, from local and state police departments to federal agencies. Changes in forfeiture policy by different presidential administrations have often attracted debate, and during the first decades of the twenty-first century dozens of states reformed or considered reforms of their policies and laws regarding civil asset forfeiture.
Understanding the Discussion
Federally adopted forfeiture: Also known as "adoption," the process in which a state or local law enforcement agency seizes property in accordance with local laws, then has a federal agency take over the seizure so that it will be subject to federal forfeiture laws instead of local laws.
Burden of proof: The standard by which a claim, such as guilt or innocence, must be legally established in court; the measure of proof is different in criminal and civil cases.
Due process: Refers to the right of all US citizens to fair treatment within the legal system. This includes the right to a trial, the right to a jury, the right to appeal, and the right to a lawyer.
Equitable Sharing Program: US Justice Department program allowing federally adopted forfeiture and sharing of proceeds; limited by the Obama administration but reinstated by the Trump administration.
Seizure: The practice of confiscating property when someone is suspected of criminal activity. It is distinct from forfeiture because seizure is often temporary and does not involve giving up ownership. Seizures often (but do not always) precede forfeiture.
History
Civil asset forfeiture in the United States has origins in the seventeenth-century British Navigation Acts, which allowed the government to seize smuggled goods from ships. Two key elements of the Navigation Acts were that seizure did not require proof of guilt or innocence, and that they specifically targeted the goods themselves, rather than the smuggler. The United States adopted similar measures after gaining independence. In the limited scope of maritime regulation of smuggling and piracy, these provisions were useful due to the impossibility of pursuing legal action at sea. When forfeiture laws began to be used in other contexts, they became less straightforward.
The Supreme Court clarified key provisions over the years, including that asset forfeiture was civil, not criminal, and therefore did not require trial and jury. The court also decided that law enforcement only needed "probable cause," or suspicion of a crime, rather than proof, to take possession of goods through asset forfeiture. If people lost property through asset forfeiture, it was up to them to prove their innocence to regain possession of their property. This is a reversal of the usual "burden of proof," which normally lies with law enforcement in criminal cases, where police seek evidence that will persuade a jury of guilt beyond a reasonable doubt.
While civil asset forfeiture was used by the government in some notable instances, such as the Civil War and Prohibition, it was generally a little-known aspect of law through the mid-twentieth century. This began to shift in the 1970s, when the practice became part of the war on drugs. The Comprehensive Drug Abuse Prevention and Control Act of 1970 specified that the federal government could use civil asset forfeiture to confiscate drug manufacturing, transportation, and storage equipment in addition to the illegal drugs themselves. The expressed intent of such forfeiture was to deprive drug traffickers of much-needed operational funds and materials. Money from assets collected through forfeiture went into what is known as the general fund of the US government, which means that it was used for a broad range of purposes instead of being allocated to a specific department or agency.
As the war on drugs expanded in the 1980s, however, civil asset forfeiture took on a new and more important role in the campaign, due to two significant changes in the law. The Comprehensive Crime Control Act of 1984 specified that money from forfeited assets would only go to law enforcement agencies, not the general fund. The act also created the Equitable Sharing Fund, allowing state and local law enforcement agencies to receive a percentage of the money from civil asset forfeiture if they cooperated with federal law enforcement in crime prevention efforts. Equitable sharing also allowed for federally adopted forfeiture, or adoption. Under adoption, civil asset forfeiture could be carried out even in states lacking laws on the practice and states with laws specifically limiting forfeiture due to concerns of abuse.
In contrast with previous forfeiture practices, the 1984 law meant that law enforcement agencies directly benefited from seizing goods from people suspected of crime. Further, as the war on drugs wore on, the Anti-Drug Abuse Acts of 1986 and 1988 and the National Defense Authorization Act of 1990 loosened restrictions on how asset forfeiture funds could be used by law enforcement. As a result, state and local agencies were able to funnel forfeiture funds toward almost any expense.
These changes contributed to a major increase in civil asset forfeitures. From 1985 to 1991, the value of assets seized through forfeiture totaled $1.5 billion; during the period from 1992 to 1997, that amount nearly doubled. Many lawmakers saw a need for reform of forfeiture laws. This led to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), which aimed to protect citizens whose property had been seized. Notably, CAFRA shifted the burden of proof to the government. Previously, property owners who lost assets due to forfeiture had to prove their innocence in order to regain their belongings, but under CAFRA the government had to prove a preponderance of evidence. CAFRA addressed a number of other issues, such as property owners who had unknowingly purchased or taken ownership of stolen goods, damage to property during police possession, fees associated with regaining property, and restrictions against suing the government. Despite these reforms, however, civil asset forfeiture continued to be a contested issue.
Civil Asset Forfeiture Today
Lawmakers of a range of political persuasions continue to work on reforming civil asset forfeiture policy. Generally, liberals tend to criticize the practice on grounds that it violates civil rights and disproportionately affects minorities and the poor, while conservatives criticize it for infringing on states' rights or individuals' property rights. Elements of both political camps have raised concern that civil asset forfeiture may be unconstitutional and harms civil rights. However, the policy has remained popular in the law enforcement community, which holds considerable lobbying power.
Reports of high-profile or flagrant abuses of civil asset forfeiture were prominently featured in the media in the 2010s. For example, in 2014–15 the Washington Post published the Stop and Seize series of investigative articles, bringing to attention a rise in forfeiture related to highway interdiction and traffic stops. It was noted that the value of civil asset forfeitures totaled $508 million in 2008 but had grown to $1.1 billion in 2013. Similarly, the libertarian organization the Institute for Justice released Policing for Profit (2015), which examined civil asset forfeiture state by state.
This attention helped lead to the introduction of several reform bills, though none was immediately passed. Then, in January 2015, Eric Holder, the attorney general under President Barack Obama, released an order intended to curb abuse of civil asset forfeiture. It essentially limited the Equitable Sharing Program, ending federally adopted forfeiture. In this way it returned to the states the power to more strictly regulate forfeiture, and some states indeed enacted laws seeking to further curb abuse. In July 2017, however, Jeff Sessions, then the attorney general representing the administration of President Donald Trump, reversed Holder's policy.
In a unanimous decision Timbs v. Indiana (2019), the US Supreme Court ruled that states' civil asset forfeiture laws are subject to restriction under the Eighth Amendment’s excessive fines clause, which the justices said applies to local, state, and federal governments alike. However, the court left open the question of what exactly constitutes "excessive." In light of that, some argued the US Congress needed to act to resolve problems with civil asset forfeiture while others said the ruling invited further litigation.
By 2024, sixteen states required a criminal conviction for an individual's assets to be seized. Four states (Maine, Nebraska, New Mexico, and North Carolina) had banned the practice of civil asset forfeiture entirely, although Nebraska's new law left law enforcement officers with some options to carry out civil asset forfeiture. While the practice continued in a number of states, dozens of states, as well as Washington, D.C., had enacted some changes to their civil asset forfeiture laws and practices by that time.
Still, the issue remained an issue for criminal justice activists and lawmakers who sought to eliminate the practice, as well as police unions and others who generally viewed it as a valuable tool for fighting crime. The Supreme Court continued to periodically address the issue; for example, in its decision in Culley v. Marshall, issued in May 2024, the Court decided not to set a new legal standard at the federal level for civil asset forfeiture and argued that existing practices did not violate the Constitution's Due Process clause.
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