Q&A: Civil Asset Forfeiture
with U.S. Senator Chuck Grassley
Q: What is civil asset forfeiture?
A: Asset forfeiture is a crime-fighting tool that enables law enforcement to seize cash or property that’s considered linked to illicit activity. The theory behind the asset forfeiture system is to choke off the funding stream used to bankroll criminal ventures, such as drugs and human trafficking or money laundering. I agree that it’s a worthy and important public policy to help thwart crime. However, it seems that sometimes law enforcement authorities increasingly have used civil asset forfeiture as a funding source for the government with thin regard for civil rights and without enough focus on actual criminal activity. Investigations by journalists and civil liberties advocates have exposed perverse incentives that have nudged the enforcement of forfeiture laws off kilter with constitutional principles. It doesn’t seem to pass constitutional muster when our system of justice allows law enforcement entities to prioritize their funding above the rights of law-abiding citizens. Essentially, a profit motive is trampling the rights of those who, in many cases, aren’t even accused or convicted of wrongdoing. This conflict of interest tips the scales against the centuries-long standard of innocence until proven guilty. As a result, law-abiding people get caught up in an over-aggressive dragnet. Enough is enough. Reforms enacted in 2000 haven’t resulted in a strong enough check to curb this abusive overreach by the government. It’s time to recalibrate and reform key provisions so that public good and public safety come from the appropriate use of federal asset forfeiture laws.
Q: What’s going wrong with the forfeiture system?
A: The idea that the government can seize and forfeit personal property, cars, cash and bank accounts, under the guise of law enforcement, with a lower burden of proof and very little procedural protections for individuals and small business owners, seems unheard of in a nation founded upon limited government, due process and fundamental civil liberties. As chairman of the Senate Judiciary Committee, I called a congressional hearing in April to take a closer look at federal civil asset forfeiture and how it’s being enforced. The Justice Department administers a program called the Equitable Sharing Program. It allows local law enforcement to keep up to 80 percent of the assets that they seize. The trajectory of the program has climbed considerably in recent years, by the billions of dollars. Those who have been mistreated by forfeiture have their lives and livelihoods turned upside down. It has put law-abiding citizens in the cross hairs of an unfair process that produces profits for police but undermines the value of the forfeiture laws to target crime. Legislation is needed to rein in abuses and prevent government overreach.
Q: What reforms would help fix the flaws in the law?
A: I’m working to draft bipartisan reforms to fix these flaws. For starters, the direct quid pro quo between asset forfeiture and funding should be eliminated. Law enforcement shouldn’t be relying on funds obtained from forfeiting the particular assets that they have seized or shift crime-fighting priorities based on financial considerations. In addition, real procedural reforms must be enacted for people whose assets are seized, including prompt timelines for government action and the ability to challenge the seizure promptly before a judge. And, individuals who cannot afford a lawyer to guide them through the system should be provided one. Part of addressing this problem lies in reversing the Supreme Court’s recent decision that allows the government to prevent people from showing that they need access to their seized funds to hire a lawyer. We also need to codify changes in the use of civil asset forfeiture in structuring cases, where small business owners like Iowa’s Carole Hinders get unfairly caught up in forfeiture for depositing money in a bank without any indication of any underlying crime. The government’s burden of proof for forfeiting assets needs to be raised.
It’s clear the current process isn’t working as Congress intended. It is time to end seizure for suspicion’s sake and enact reforms that will help restore the proper mission of asset forfeiture laws and rebuild credibility in our law enforcement agencies.