by Bruce Dunlavy             (My blog home page and index of other posts may be found here.)

When Thomas Jefferson wrote the Declaration of Independence, he included “life, liberty, and the pursuit of happiness” in his list of “unalienable rights.” This is a modest adaptation of John Locke’s phrase, “life, liberty, and property,” probably because Jefferson thought that property and the pursuit of happiness were just about the same thing.

In Locke’s work, as well as the Declaration, the then-radical idea was put forth that one of the functions of government was the protection of these individual rights. Jefferson was very straightforward about this in the Declaration: “That to secure these rights, Governments are instituted among Men.”

Something of a perversion of this concept has become rampant among the State and Federal governments of the United States today, namely, the widespread use of civil forfeiture. The “civil” part of that phrase is designed to differentiate it from “criminal” activities and law. Traditionally, the two are separate parts of the law and are administered under separate statutes, regulations, and rules, and are heard in separate courts.

The origins of civil forfeiture are found in a murky concept called deodand. This word comes to us from the Latin Deo dandum, meaning “that which is to be given to God,” and is rooted in the ancient notion that animals and inanimate objects may bear guilt if they are responsible for harm, particularly the death of a person. For example, a bull that trampled a man was forfeited to the King, who then was expected to remit the proceeds to the Church or some other religious or charitable purpose. If a stone fell from a house and killed a person, the house could be forfeited under deodand. By extension, the forfeiture could be any object involved in the commission of a crime.

In English common law, this concept existed until 1846. In American law, it exists in a twisted form today. At its beginning, the United States found civil forfeiture to be a useful tool in ensuring that the Federal government’s main revenue stream was effectively enforced. Federal taxes were modest at best, and the central government got the great majority of its funding from the collection of import duties and customs tariffs. The owners of the ships used by smugglers and tariff-dodgers were difficult to try in Federal courts, because they were usually in other countries and thus beyond the reach of American criminal law. The government found it much easier to approach the collection of duties in the civil courts, seizing the smuggled goods and the ships they were carried in.

For the first 200 years of American governmental practice, civil forfeiture was not widely employed within the borders of the United States, nor against its own citizens. One rare instance in which civil forfeiture reappeared was during Prohibition, when the Federal government seized illegally made liquor along with the property and money attached to it. When the War on Drugs was initiated in the 1970s, Federal prosecutors used this precedent to engage civil forfeiture as a weapon against large-scale drug dealers, as a process that could be applied with relative ease in comparison to a criminal proceeding.
Three important acts of Congress paved the way for this:

The Comprehensive Drug Abuse Prevention and Control Act (1970), known as the Forfeiture Act, allowed the seizure of property owned by people who had been convicted of illegal drug sales.

The Psychotropic Substances Act of 1978 authorized the confiscation of any “thing of value” that was used or that intended for use in the purchase of illegal drugs. This expansion of the Forfeiture Act meant that actions could be taken against things and not just people. Tracing back to deodand, this imparts guilt or innocence to the object itself (known to lawyers and legal scholars as in rem, a concept devised to allow the forfeiture of property to satisfy a debt), meaning the guilt or innocence of the owner of the property has no bearing on the case.

In 1984 (yes, 1984), the Comprehensive Crime Control Act broadened the property which could be seized to include real estate – lands, buildings, and other structures.

The result of this succession of laws is a class of legal cases bearing such bizarre names as “State of Texas v. One 2004 Chevrolet Silverado” or “United States of America v. $124,700 in U.S. Currency.”

I am not a lawyer; I’m a historian.  In light of that, I understand that there are numerous differences in the prosecution of criminal and civil cases. The general idea is that criminal law involves the commission of a crime, and is therefore strictly bound by the Constitutional and common-law requirements that the accused party’s rights not be abused.

Civil cases are presumed to be not between the government and the individual, but between the individual and the rest of society.  As a result, the rules are different, affording less protection to the individual. For example, the burden of proof is lower. There is no requirement for proof “beyond a reasonable doubt,” but only greater likelihood than not that the seized property is connected to the commission of a crime. In addition, most jurisdictions do not begin with a presumption of innocence; each side attempts to prove its case from an even start.

Moreover, since Gideon v. Wainwright in 1963, criminal cases require that a defendant be given the assistance of a lawyer at no cost if they cannot afford one (as required by the Sixth Amendment). In a civil case – including government seizure under civil forfeiture – the defendant must either pay for a lawyer out of pocket or go without legal representation.   If the defendant’s assets have been seized under civil forfeiture, the defendant is thereby deprived of the wherewithal to hire and pay an attorney.

As is so often the case, once we start abandoning principles for a good reason, it soon leads to abandoning principles for a bad reason. If the initial purpose of the broadening of civil forfeiture laws was to help control an exploding drug problem, that original purpose seems now to have become a secondary issue. Today governments seem to be employing civil forfeiture as a means of raising revenue.

In particular, this revenue winds up in the budgets of State and local law enforcement agencies. Most State laws require the proceeds of forfeitures to be applied to the General Fund, which supports all State government operations. But through a process called “equitable sharing,” the States can turn over seized property to the Federal government to be seized under Federal law. Up to 80 percent of the proceeds of this forfeiture can then be remitted by the Federal government directly to the State or local law enforcement agency which seized it. This has the effect of giving local agencies an unregulated revenue stream, the size of which is dependent on the number and size of asset forfeitures they collect. Many jurisdictions do not require a transparent accounting of this revenue, including if and how it is reported and how it is spent.

It is clear that there are abuses in the civil forfeiture process, but more important is that we question the very basis of its legitimacy. The Fourth and Fifth Amendments should be clearly understood to mean that governments must not be so cavalier in respect of property rights. Forty-two States and the Federal government allow law enforcement agencies to keep forfeited property. It’s a conflict of interest in which these agencies benefit from confiscating the property of people who have not committed a crime. This injustice should not continue.