What alternatives exist to civil asset forfeiture practices?

Alternatives to Civil Asset Forfeiture: More Just Options for Seizing Assets

Civil asset forfeiture allows law enforcement to seize assets suspected of being connected to criminal activity, without ever having to file criminal charges or obtain a conviction. This controversial practice has come under fire in recent years for lacking sufficient due process protections and for creating perverse incentives for policing for profit.

While civil forfeiture remains legal federally and in most states, there is a growing push for reform. Critics argue we need alternatives that better balance law enforcement’s need to disrupt criminal operations against individuals’ rights to due process and property rights. Several states have already enacted reforms, and proposed federal laws aim to increase protections as well.

This article will examine problems with current civil forfeiture processes, legal precedents around due process requirements, reform efforts underway, and alternative models that could provide more fairness while still fighting crime.

Problems with Current Civil Forfeiture Regimes

Unlike criminal forfeiture, civil forfeiture does not require a criminal conviction or even filing of charges – law enforcement only needs to show probable cause linking the assets to criminal activity [1]. While the legal standards are lower, the impacts on property owners can be severe.

Critics argue this creates distorted incentives for policing. Generating revenue, rather than public safety, becomes the priority. There are numerous cases of people having cash, cars or even homes seized over minor offenses, with little recourse [2].

The profit motive affects which communities bear the brunt of civil forfeiture. Low income individuals and minorities tend to carry more cash, use cars as primary transportation, and have fewer resources to challenge seizures, making them prime targets [3].

While civil forfeiture is sold as a crime-fighting tool, studies show it does little to combat drug use or other offenses. One analysis found no reduction in crime rates between cities with and without forfeiture programs [2].

Legal Precedents on Due Process

Courts have weighed in on what kind of due process protections are required in civil forfeiture proceedings. While rulings have not gone as far as critics want, they do lay down some guardrails.

In United States v. James Daniel Good Real Property, the Supreme Court held that seizing real property without notice and a hearing violates the Fifth Amendment’s due process clause [4]. As a result, the government must provide notice and allow property owners to challenge seizures in court.

Lower courts have clarified timing requirements – in Krimstock v. Kelly, the Second Circuit ruled that post-seizure hearings must happen promptly, not months or years later [5]. This prevents lengthy deprivations of property before owners can challenge them.

While these rulings provide baseline protections, critics argue much more reform is needed to prevent abuse and overreach.

State Reforms

In response to criticism, many states have enacted reforms to increase due process protections and restrict how forfeiture proceeds can be used.

15 states now require a criminal conviction before assets can be forfeited through civil proceedings, compared to none in 2000 [2]. This raises the legal standard closer to criminal forfeiture.

24 states now ban police and prosecutors from using forfeiture proceeds on salaries, equipment or other agency costs. This reduces financial incentives driving seizures [2].

Some states have shifted the burden of proof onto the government, requiring it to show assets are connected to criminal conduct, rather than owners having to prove their innocence.

While reforms vary, they aim to limit abuse and realign civil forfeiture with its original purpose – disrupting major criminal enterprises.

Proposed Federal Reforms

There is also momentum for reform at the federal level, where asset forfeiture remains largely unrestricted.

The FAIR Act, introduced in Congress, would effectively end civil forfeiture. It prohibits forfeiture without a criminal conviction, raises the standard of proof to clear and convincing evidence, and bans law enforcement from profiting .

The DUE PROCESS Act takes a more moderate approach. It shifts the burden of proof to the government and provides additional protections for innocent property owners .

While neither bill has passed yet, they demonstrate the appetite for reform. Several Supreme Court justices have also voiced concerns around civil forfeiture abuses.

Alternative Models

So what models could provide a better balance? There are several options that would improve due process while still letting law enforcement disrupt criminal networks.

Restricting Civil Forfeiture

One approach is to keep civil forfeiture, but add restrictions similar to state reforms – requiring criminal conviction, banning policing for profit, raising the standard of proof, etc. This would preserve civil forfeiture for situations where criminal prosecution isn’t feasible, while adding protections.

Warrant Requirements

Requiring law enforcement to obtain a warrant or court order before seizing property would act as an important check against abuse. It adds judicial oversight and requires showing probable cause upfront.

Prompt Hearings

Guaranteeing prompt post-seizure hearings, as the Second Circuit did, would make it far less likely people lose property for extended periods without justification. It forces the government to justify its actions.

Increased Burden of Proof

Raising the government’s burden of proof to clear and convincing evidence would make seizures less arbitrary. Currently, civil forfeiture only requires showing probable cause, a very low bar.

Hybrid Civil-Criminal Process

Some experts propose a hybrid system covering aspects of both civil and criminal forfeiture. For example, allowing criminal forfeiture tools like substitute asset seizure, while requiring civil protections like appointed counsel for indigent owners.

This balances robust law enforcement powers with increased safeguards for property rights.

Expanded Criminal Forfeiture

Rather than restricting civil forfeiture, we could expand use of criminal forfeiture. This requires filing charges and conviction, but allows targeting assets without needing to prosecute owners .

Criminal forfeiture could become the default, with civil proceedings used only when criminal prosecution isn’t viable.

Conclusion

Increasingly, the public, lawmakers and courts agree that civil asset forfeiture requires major reforms. Clear problems exist in how current regimes undermine due process and property rights.

While civil forfeiture isn’t going away entirely, we have several alternative models that could target criminal networks while respecting rights. Warrant requirements, prompt hearings, restricting policing for profit, expanded criminal forfeiture – these reforms can curb abuses.

Asset forfeiture remains a critical tool, but the days of unrestricted civil forfeiture appear to be ending. The path forward lies in balancing security and rights more effectively.

Through state experiments and proposed federal laws, we see momentum growing for these types of alternatives. While the reform process is ongoing, it provides hope that more just regimes are within reach.