Is asset forfeiture constitutional? What protections exist?

Is Asset Forfeiture Constitutional? What Protections Exist?

Asset forfeiture is when the government seizes property that it claims is connected to a crime. The property can be seized without even charging someone with a crime! Crazy right? This controversial practice raises major constitutional issues about due process and property rights. But governments argue it’s an important tool to disrupt criminal operations. Where do you fall on this debate? Read on to learn the key facts, laws, and arguments around asset forfeiture.

What exactly is asset forfeiture?

Asset forfeiture laws let police seize assets like cash, cars, or homes that they suspect are tied to criminal activity. Here’s how it works:

• Police suspect your property is connected to a crime in some way. This could be something as small as carrying cash they think is for buying drugs.
• They seize your property on the suspicion alone, without even charging you with a crime!
• To get your property back, you have to go to court and prove you obtained it legally. The burden of proof is on you.
• If you fail to prove this (or give up fighting), the police get to keep your property and use it however they want. Cha-ching!

So in summary – the police take your stuff, without proving you committed a crime, and then you have to prove your innocence to get it back. Kinda backwards from how we normally think of “innocent until proven guilty,” right?

A little history

Civil asset forfeiture laws kicked off during the war on drugs in the 1980s. The idea was to hit drug kingpins in the wallet by seizing all their illegal assets. But over time, critics say police have abused these laws to take money and property from ordinary people without due process.

Things escalated in the 2000s as police budgets got tight. Asset forfeiture became a way for police departments to raise funds and buy cool new tech. But this created some pretty ugly incentives…

“Police departments now had a direct financial incentive to use civil asset forfeiture to seize people’s property.”

Public outrage grew over stories of police abusing civil forfeiture to take money, cars and homes without fair justification. People felt some cops cared more about raising revenue than public safety.

The Constitutional Debate

So how is civil asset forfeiture constitutional when the Constitution says you can’t be “deprived of life, liberty, or property without due process of law?” Good question!

The justification boils down to this:

• Asset forfeiture cases are civil suits against the property itself, not the owner.
• Because no one is being criminally charged or punished, constitutional rights like due process don’t fully apply.

But many legal experts argue this logic is dubious at best. The Supreme Court has ruled that property rights are still fundamental civil liberties. And just because asset forfeiture cases are technically “civil” doesn’t mean people aren’t being unfairly treated like criminals without due process. As Supreme Court Justice Thomas wrote in 2020:

“Modern civil forfeiture statutes are plainly unconstitutional under the original meaning of the Due Process Clause.”

Pushing for Reform

In light of concerns over due process, many states have passed reforms to asset forfeiture laws. For example:

• Raising the standard of proof required for police to seize property
• Requiring police to charge owners with a crime before seizing assets
• Restricting how police can use forfeiture proceeds
• Improving reporting to prevent abuse

Civil liberties groups continue pushing for change. And public opinion seems to be shifting. In a 2021 poll by the Cato Institute, 84% of Americans opposed civil asset forfeiture. People want police held to higher standards before taking property.

But police lobbyists argue asset forfeiture is an indispensable tool for fighting crime. They say stories of abuse are overblown. And reforms could let criminals keep illicit assets while hindering police budgets.

Fighting Back in Court

If your property is seized, you can challenge the forfeiture in court. But this is an uphill battle. Police only need probable cause to take your assets. And the burden of proof falls heavily on you to prove your innocence. Here are some defenses people try:

• Arguing the seizure violated your Constitutional rights or state laws.
• Providing records showing your assets were obtained legally.
• Filing “innocent owner” claims if the assets were used without your knowledge.
• Proving you did everything reasonable to prevent illegal use of your property.

Having a good lawyer helps a lot. Public interest law firms like the Institute for Justice sometimes take forfeiture cases pro bono. Don’t try to navigate the process alone.

What’s the Bottom Line?

Asset forfeiture raises big concerns about government overreach versus public safety needs. Police say it’s an indispensable tool, while critics see it as an unconstitutional cash grab. The truth probably lies somewhere in between.

Reforms have helped curb abuse, but troubling cases still happen. Ultimately we have to decide as a society: what’s the right balance between due process and fighting crime? There are good arguments on both sides. Where do you stand?