By Robert Everett Johnson Opponents of civil forfeiture — myself included — have been waiting for someone to take the other side of the debate. Every year, the federal government uses civil forfeiture to seize more than $1 billion dollars in private property simply by alleging it was somehow involved in a crime. Property owners are forced to engage in protracted legal battles to prove their own innocence and get their property back. Perhaps unsurprisingly, it has been difficult to find anyone willing to defend this controversial and constitutionally suspect practice.
That changed at a recent hearing before the Senate Judiciary Committee, when civil forfeiture finally found a voice in GOP Sen. Jeff Sessions of Alabama. Now we know what a full-throated defense of civil forfeiture sounds like. And that defense is unconvincing.
It’s not hard to see why champions of civil forfeiture are difficult to find. Consider the case of Russ Caswell, who testified at the recent Senate hearing. The government invoked civil forfeiture to take his family-owned motel, not because he did something wrong, but because some customers violated the law in the privacy of their own rooms. Caswell was forced to prove his own innocence to prevent the forfeiture of his business, which also happened to be his life-savings and retirement plan, all rolled into one.
Few are willing to go on record defending a practice that so blatantly disregards the fundamental principle of innocent until proven guilty — to say nothing of the right to private property.
Enter Sessions. Midway through the committee hearing, he declared that he was “very unhappy” with criticism of civil forfeiture, because in his view “taking and seizing and forfeiting, through a government judicial process, illegal gains from criminal enterprises is not wrong.” Apparently drawing a number from thin air, Sessions announced “95 percent” of forfeitures involve people who have “done nothing in their lives but sell dope.”
Now, nobody disputes that government needs the power to punish criminal behavior. But first things first: Before government labels someone a “criminal,” it has to secure a criminal conviction. The fact of the matter is, we have no way to know what portion of civil forfeitures involve genuine “criminals,” as the whole point of civil forfeiture is that government can take property without convicting or even charging anyone with a crime.
If Sessions is correct that civil forfeiture reliably targets criminals, the government should have no trouble proceeding under the criminal law.
But, Sessions asserted, it would be "unthinkable that we would make it harder for the government to take money from a drug dealer than it is for a businessperson to defend themselves in a lawsuit." Thus, Sessions believes when government wants to take property allegedly involved in a crime, it “should not have a burden of proof higher than a normal civil case.”
There are, however, good reasons why the law imposes the familiar “beyond a reasonable doubt” burden in criminal cases. The government has resources that dwarf those of any private litigant, and the government also has powers private litigants do not. For instance, when a regular Joe sues a business, he must wait until after the trial is over to recover on a judgment. Government, on the other hand, can take your property before trial and then force you to fight to get it back. Given these extraordinary powers, it is hardly “unthinkable” that government should be held to a higher standard of proof.
Moreover, to disregard the “reasonable doubt” standard merely because government seeks to take your property, rather than throw you in jail, is inconsistent with the constitution’s protection for private property — a value conservatives like Sessions ought to hold dear.
And Sessions is equally wrong about the profit incentive created by civil forfeiture. He argued that once forfeiture is accomplished, there is “nothing wrong with . . . [having] the money be given to the officers who helped develop the case.”
What Sessions overlooks is the corrosive effect of giving law enforcement a direct pecuniary interest in enforcing the law. The decision to punish an alleged criminal should be based on the government’s interest in preventing crime — not the need to raise additional revenue to fill the government’s coffers. Otherwise, government officials are driven to go after small business owners such as Caswell, who presented a fat financial target but who did nothing wrong.
Sessions plainly believes it is important for government to deter and punish criminal behavior. That’s a conviction we all can share. But the need to punish criminals is not a reason to abandon protections that exist to shield the innocent and to provide due process for all. And it certainly is not a reason to create a direct financial incentive for government officials to pursue forfeiture where they are either unwilling or unable to prove a crime occurred.
So, now we know what a defense of civil forfeiture sounds like. And the need to reform the nation’s civil forfeiture laws remains as urgent as it was before.
Robert Everett Johnson is the Elfie Gallun Fellow for Freedom and the Constitution at the Institute for Justice. The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.