In all but three US states, the police are legally allowed to seize and keep cash, cars, houses, and other property from people who are never convicted or charged with criminal wrongdoing. In the other three states, police can use a legal loophole to circumvent these restrictions.
This practice is called civil forfeiture, and law enforcement often wields it as a tool to fund their departments. According to the Institute for Justice, the practice has only grown more popular since the government began using it during prohibition. In 1986, the Department of Justice accrued $93.7 million in revenue from federal forfeitures. By 2014, that number had reached $4.5 billion–a 4,667% increase
To compound the issue, multiple studies have found that civil forfeiture often disproportionally targets low-income residents and people of color.
These are only a few examples of this abuse in action, and police are not only unfairly targeting these demographics, they’re not even using the practice for its intended purpose. Originally, forfeiture was advertised as a way to hamstring expansive criminal enterprises by taking away their funding. Today police are using the practice to exploit the disenfranchised for profit.
“Many states and cities turn to asset seizures in order to compensate for budgetary shortfalls,” says David Reischer, attorney and CEO of LegalAdvice.com. “Law enforcement will over-enforce minor crimes that carry the possibility of forfeiture (usually minor drug crimes) to the neglect of other, more important law enforcement objectives.”
Rather than use civil forfeiture to cripple drug enterprises, law enforcement often turns isolated incidents involving small amounts of drugs (especially marijuana) into funding opportunities. And rather than act as equal opportunity enforcers, Reischer says they will target the poor and people of color because:
Civil forfeiture horror stories that follow this trend are all too common.
Chicago, Illinois, 2015: After mistakenly identifying Darren, a 43-year-old black man, as a drug dealer, police seized two flat-screen televisions and an Apple computer. Although he was cleared of any wrongdoing, they never returned the items.
North Charleston, South Carolina, 2015: Isiah Kinloch, a black tattoo artist, called the police after someone broke into his apartment and assaulted him. When police found an ounce of marijuana in his apartment, they seized $1,800 in cash and charged him with possession with intent to distribute. But when the charges were dropped, Kinloch never received his money, and was evicted for not being able to pay rent.
Whitehouse, Texas, 2016: After pulling over Otha Ray Kincade, a black man, for speeding, police found less than two grams of marijuana and less than one gram of cocaine in his pickup truck, and seized $1,359. Kincade was on parole after serving time for a low-level possession charge, and insisted the drugs were for personal use and the cash was his pay from the paint company where he worked. The manager of the company confirmed his employ, but police refused to return the money. Kincade was unable to fight the forfeiture in court and was sentenced to five years in prison.
The fact that none of these incidents were related to any sort of criminal enterprise did nothing to deter these forfeitures, nor did it move law enforcement to return the seized property.
“Prosecutors justify the seizure [by considering it] as both a type of fine and also punishment,” Reischer says. “The fact that it doesn’t connect to a drug trafficking operation is deemed as irrelevant.”
And if a defense council argues that the failure to connect these seizures to a drug case should be considered a mitigating factor to lessen the gravity of the offense, the argument falls on deaf ears.
The aforementioned stories of forfeiture abuse were made public because of diligent reporting. There is little public oversight of forfeiture activity, and this lack of transparency and accountability helps law enforcement continue abusing the practice unimpeded. Without oversight, police can target whoever they want, take whatever they want, keep whatever they want, and spend the forfeiture proceeds on whatever they want.
“The importance of ‘policing for profit’ is what drives the law enforcement patrols,” Reischer says. “There is usually little transparency and accountability to track assets that are seized so civil forfeiture also engenders police corruption.”
Fortunately, there has been a recent push for civil forfeiture reform. Groups like Institute for Justice, Heritage Foundation, and Texas Public Policy Foundation are reporting on forfeiture abuse and stoking national conversation. Additionally, a bill introduced by Representatives Tim Walberg (R-Mich.) and Jamie Raskin (D-Md.) called the Fifth Amendment Integrity Restoration Act would demand higher standards of evidence of a crime before law enforcement can seize property, and close a loophole called “equitable sharing” that allows federal agencies to share forfeiture funds with state and local agencies.