Civil asset forfeiture practices allow law enforcement officers to take possession of an asset, usually money, based on the belief that the property was involved in wrongdoing. The law enforcement officers have the mandate to take the property without bringing any criminal proceedings against the person who is in possession of the property. Under civil asset forfeiture, the government doesn’t charge an individual with the crime but charges the asset, commonly known as in rem action.
Charging the property and not a person with a crime has severe legal consequences. When the government files charges against a person, it has to respect the person’s right. However, when the government files charges against the property, the action is civil, and the concept of innocent until proven guilty doesn’t apply. Most people often wonder what happens to the money that the law enforcement officers seize during an asset forfeiture.
Where Forfeited Money Goes
Both the state and federal governments have laws that outline where forfeited money should go and how it should be used. The Federal law authorizes civil forfeitures under Section 881 of the Comprehensive Drug Abuse Prevention and Control Act. Following the amendment of the Act in 1984, the law stated that the proceeds of civil forfeitures could be deposited into the United States Treasury’s General Fund. In 1986, there was yet another amendment of the Act, which allowed law enforcement officers to keep the proceeds of civil asset forfeiture. The amendment also established ‘equitable sharing,’ meaning that most of the proceeds (up to 80%) go to the local and state agencies as long as the agencies were involved in the enforcement action.
If the state chooses, it can receive significant revenue from the federal asset forfeitures and their enforcement actions or forfeitures under the federal law. Many jurisdictions in the U.S. allow the retention of forfeited property for official use. An even higher number of local jurisdictions allow the forfeiture proceeds to cater to the forfeiture expenses. Some jurisdictions outline that the funds obtained through forfeitures can be handed over to law enforcement or used to meet law enforcement purposes.
It is evident that both the state and the federal law have given law enforcement leeway regarding the use of forfeited money. However, only a small percentage of the states in the U.S. use forfeited funds for drug prevention or treatment. In most cases, education and treatment are more effective in curbing drug use than law enforcement efforts. Most forfeiture procedures are surrounded by lowered due process protections. There are concerns that law enforcement offices have a strong incentive to promote the war on drugs to meet their high budget demands through asset forfeitures. The evidence of the effectiveness of the law enforcement officers’ war on drugs is missing.
Cash Seizure in Peculiar Circumstances
Incidences of the police seizing cash in peculiar circumstances are common. Many business people have had their money seized by the federal authorities, yet they are innocent. Most of them have had to wait for a considerable time to have the money returned to them, making them undergo significant financial hardships.
In many instances, police have broken into homes, even without warranty, and seized money, only for the cases against the defendants to be dropped later. When these people claim the seized money, they are told that it is too late because the money has been deposited into the police pension fund. Most victims of asset forfeiture have to fight endless battles to retrieve their money. There has been an increase in the instances of the IRS seizing money from innocent business people who make frequent deposits, yet they run honest businesses.
The cases of the U.S. Drug Enforcement Administration seizing money from travelers on domestic flights are also on the rise. According to an investigation conducted by USA Today, these agents seized a total of $209million in cash from passengers between 2006 and 2016. This investigation was conducted on the 15 busiest airports. Agents seize money from people who do not have any connections with drug use or charges.
Seizure of Money in Bank Accounts
The government can seize money directly from your bank account. This mainly happens when you make several deposits, and the investigators believe that you have structured the deposits to avoid a deposit exceeding $10,000. Deposits exceeding $10,000 must be disclosed to the federal government. However, your business may have regular cash deposits. In some instances, the Internal Revenue Service (IRS) waits for large deposits to hit a bank owner’s account and then forces the bank to surrender the money to them. If you make regular deposits into your account, the government may suspect criminal activity and seize your money. You would then have to hire an attorney to have your funds returned, which is expensive and time-consuming.
When Seized Money is Handed Permanently to the Police
When the police seize your money, the money may become theirs permanently in two ways:
- When the prosecutor proves that the seized money was connected to a criminal activity
- When you do not make any attempt to claim the seized money
In most cases, seized money reverts to the law enforcement officers’ ownership by default. If you challenge the seizure, the prosecutor may offer to return half of the seized money to you in exchange for not suing or reporting them. Sometimes, the police may return all the seized money, especially if they are confronted by lawyers or by the victim.
Usually, the police volunteer to return all the seized money provided the victim or their attorney promises not to sue the police or the prosecutor for the unlawful forfeiture. Most victims are willing to do everything, including not suing, to recover all their money back. Many victims fear the legal struggles involved while claiming their money. However, most of the seized money ends up with the law enforcement officers. Only a small percentage of the federally seized property is ever returned to the police.
The Justification of Asset Forfeiture
The key justification of asset forfeiture is to prevent criminals from benefiting from the gains from illicit activity or the profits of crime. Therefore, it is common for law enforcement to take assets that criminals use and the proceeds of their criminal activities. Asset forfeiture aims to bring down established criminal networks that often rely on huge flows obtained from illicit activities or the sale of illegal/ illicit goods.
Why Civil Asset Forfeiture Reforms are Necessary
In most cases, asset forfeiture affects innocent Americans and not the targeted criminals. Numerous egregious stories portray how unfair asset forfeiture is. The other reason why these reforms are necessary is the hassle that innocent people go through to recover the forfeited assets.
Once the money is taken, the burden on proof lies on the property owner. You have to prove that the seized cash has no links to a crime. The sad part is that civil asset forfeiture victims do not have a right to legal representation and rights like they would have in a criminal case. Therefore, when the police seize your cash, you will have difficulty litigating to recover your money back. The process of getting your money back will be expensive and time-consuming. Many property owners do not consider the litigation process worthwhile given the time and money they spend, and they end giving up on the seized money.
How the Police Benefit From Civil Assets Forfeiture Money
Police departments have a strong incentive or drive to take and keep money from people, including innocent people. Most of the amounts seized by the police are significant but not adequate to warrant hiring an attorney. In most cases, victims realize that hiring an attorney might end up costing more than the money forfeited.
Many law enforcement officers abuse the civil forfeiture law because there is no requirement to surrender the forfeited property to a state fund. In most cases, the police departments keep what they take. For many police departments, seizing assets and money from citizens has become a recurrent source of funds.
Numerous reports exist regarding how police departments misuse money seized from people. In the past, police departments have used this money to buy heavy weaponry, some of which is inappropriate for the civilian police department. Even if the police use the forfeited assets for proper purposes, there is still inherent abuse, including spending money not allocated to the law enforcement via a transparent process.
The continued abuse of the police’s asset forfeiture rights has led to an intensified lack of trust between the law enforcement officers and the community or the people they serve. According to the justice system, a person is innocent until they are proven guilty. However, the current asset forfeiture laws do the opposite by taking money from innocent people. Even if the asset forfeiture law were passed with no ill intentions, there is a need for reforms.
There have been countless media reports regarding the abuse of civil forfeiture and how the police seize money from innocent and unsuspecting citizens. According to USA Today, civil forfeiture has become increasingly common and could soon qualify as legalized theft by the police. Several organizations are working for reforms and finding ways to help the victims of civil asset forfeiture. Some of the bases of the criticism are:
A Flawed/Compromised Judicial Process
Critics point out that the seizures are not in line with the Due Process Clause of the U.S. constitution. Some property seizures by the police are an infringement of the victims’ rights. Critics point out that criminal offenders receive better treatment in court than innocent people whose money has been seized. In a criminal case, the offender is considered innocent until they are proven guilty.
However, in a civil asset forfeiture case, the victim is considered guilty until proven innocent. In the civil justice system, the victim has no right to legal counsel. Therefore, if the victim cannot afford to hire an attorney, they have slim chances of recovering the seized cash. Most cases of seized funds do not reach the judge or jury because victims lack the fund to hire an attorney. The police conduct most seizures through sealed documents, meaning there is a lack of transparency. This is not in line with the principles of open justice.
Encourages Police Misbehavior
The current system is set in such a way as to encourage perverse behavior by the police and other predatory government agencies. The system allows law enforcement and government agencies to take property and cash from people without first convicting them of wrongdoing or charging them with a crime. The assets and the cash are a great temptation for the police, making them presume that people are involved in illegal activity, yet they are innocent.
The huge amounts of money involved in asset forfeitures often distort the police’s focus. The police tend to focus more on seizing the money than illegal drugs. The profit motive drives the police because they can keep 80% of the forfeiture proceedings. The police often use the forfeited money for their office expenses, including purchasing new vehicles and equipment.
Most of the seized money ends up paying salaries in the District Attorneys’ offices. Even when victims claim back their money, the refund is obtained from the taxpayers’ money and not from the police funds. The police do not face penalties for wrongful seizures even when the tax has to pay back the ill-gotten gains from innocent people. Whenever the police come across people with a large amount of cash, there is an incentive to identify a drug-related issue.
The Recommended Reforms
There are several areas where the civil forfeiture laws need improvement. The reforms seek to ensure that innocent people do not suffer emotionally or financially. The current laws tend to target the poor and politically-weak people. The reforms also seek to end the arbitrary punishments associated with civil asset forfeiture.
Protecting Innocent People
Under the current law, property owners go through a hectic time establishing that they are innocent when the police seize their money. This leaves innocent property owners with no one to protect them. Many proceedings regarding property seizures aren’t heard by the judges or jurors but are addressed administratively.
While claiming the seized money or property, owners have to adhere to short deadlines. Failure to comply with these deadlines often leads to the immediate forfeiture of their property. All these factors do not comply with the constitution and the rights of Americans. There’s a need to ensure that innocent people attend a hearing before the judge or juror to determine whether the property seizure is lawful or justified.
Instead of presuming that the property owner is guilty until proven innocent, the government ought to assume that the property owner is innocent until proven guilty. The burden of showing/proving guilt or innocence should not lie on innocent victims who have to prove beyond doubt that they are innocent. The burden of proof belongs to a prosecutor.
Raising the Law Enforcement’s Burden of Proof
The other reform involves raising the law enforcement’s burden of proof, which they must show before retaining the seized cash or property. In most cases, the law only requires the prosecution to show a connection of the property or the cash to criminal activities. The police only need to prove that it’s highly likely that the cash is connected to criminal activities. This proof falls short of the ‘beyond reasonable doubt’ proof in criminal cases.
Many U.S. states have continued to adopt convincing evidence in civil asset forfeiture cases. This means that the prosecutors need to have a strong conviction that the victim’s cash is connected to criminal activities.
An End to Equitable Sharing
The other proposed and crucial reform is to end the notion of equitable sharing. According to the equitable sharing policy, the state’s efforts to reform its forfeiture law may be futile. The federal government might still give the local police incentives to make them cooperate with the federal seizures. Since the federal agencies receive up to 80% of the forfeiture proceeds, they might choose to continue implementing the federal property forfeitures. If the state policymakers would abolish equitable sharing, they can regain freedom and control over local budget and policing decisions.
Find an Asset Forfeiture Attorney Near Me
Having the police take money or any other item of value from you can be infuriating, especially if you haven’t been involved in any wrongdoing. If you feel that the police took money illegally from you, you might have some legal options for getting the money back. Understanding the local asset forfeiture laws can help you protect your rights. If you or your loved one is a victim of unlawful asset forfeiture, the Asset Forfeiture Attorney can assist. We will help you bring a lawsuit against the prosecutor or the law enforcement officers. Contact us at 888-571-5590 and speak to one of our attorneys.