Britannia begin to rule the waves in the mid-1600s. By the 1700s, the sun never set on the British Empire; it stretched across the globe. During these centuries, the British crown deployed civil forfeiture practices under the Navigation Acts, which mandated vessels importing or exporting products from British ports fly the British flag. Ships that did not could be seized even if the ship’s owner was innocent of any wrongdoing.
Additionally, there were situations where the owner would have been on the other side of the ocean, thereby making their apprehension much more difficult than seizing the ship itself. Essentially, if the Navigation Acts were violated, the cargo — or perhaps the entire ship — could be seized and forfeited in favor of the British crown even if the property owner was innocent.
The United States Supreme Court upheld the constitutionality of forfeiture laws in the early 1800s. For example, former Justice Joseph Story explained in the 1844 case United States v.The Brig Malek Adel the “vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attachés.” In effect, the property would be deemed “guilty.”
Although civil asset forfeiture laws saw expanded use during the Civil War, these laws were largely dormant with the exception of the Prohibition Era, when the government used it frequently to seize vehicles used to transport illegal liquor. After Prohibition ended, the practice was virtually unused for several decades.
In the 1980s, civil asset forfeiture practices were revived and have tremendously expanded. For example, in 1986 the U.S. Department of Justice reported its Asset Forfeiture Fund (AFF) took in $93.7 million in proceeds from forfeited assets. By 2014, the AFF hauled in roughly $4.5 billion.
This increase is due to several factors, including a low “standard of proof” under which the government can take property. In a criminal proceeding, the burden the government must meet to convict someone of a crime is “beyond a reasonable doubt.” However, in a civil asset forfeiture proceeding, the burden in many instances is merely a “preponderance of the evidence,” a substantially lower burden than “beyond a reasonable doubt.” In addition, “preponderance of the evidence” is lower than the burden of “clear and convincing evidence.”
Another reason behind these seizures and forfeitures is the agency seizing property usually gets to keep between 45 percent and 100 percent of the property after it is forfeited. Further still, sometimes state restrictions on civil asset forfeiture are circumvented by steering forfeitures to federal court via a federal program known as “equitable sharing.” These state agencies cooperate with the federal government during seizures of property and then receive a portion of the property. In some cases, they receive up to 80 percent of the proceeds. Essentially, the property of an individual is taken even if the person is never charged with a crime.
Fortunately, since 2014, more than 20 states and the District of Columbia have enacted laws limiting asset forfeiture or making the civil asset forfeiture process more transparent, such as requiring the agency to disclose what property was seized, whether the property was forfeited, where the forfeiture proceeds are directed and whether the property owner was charged with a crime. This year, several states have passed legislation reforming their civil asset forfeiture process.
Arizona raised the burden on the government of proving the property was tied to criminal activity from a preponderance of evidence to clear and convincing evidence. This heightened legal standard will make it more difficult for government agencies to seize and obtain a judgment of forfeiture over an individual’s property. In addition, the law provides greater transparency regarding the state’s civil asset forfeiture process.
For example, the law’s new requirements include requiring agencies to report and ultimately make public the value, type and date of a property seizure, if any criminal charges were filed and the final disposition of the seized property. Such transparency is essential to ensuring abuses of the civil asset forfeiture process are significantly diminished and improvements can be made when necessary.
Mississippi passed a law that will make their asset forfeiture process more transparent. For example, it requires the Mississippi Bureau of Narcotics to maintain a website which shows the descriptions and values of seized property, which agency seized the property and any court petitions challenging the seizures. The law will also hold agencies more accountable by withholding grant funding from any state agency which fails to comply with the reporting requirements.
Raising the burden of proof required for the government to take someone’s property, increasing transparency and removing the financial incentives of the seizing agencies are various ways states have sought to increase private property protections. As seen by these efforts, reforming civil asset forfeiture after nearly 500 years is long overdue.
Ronald Lampard is the director of the Criminal Justice Reform Task Force at ALEC.
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