Asset Forfeiture Abuse Revisited

John Ross of Reason has a nice article summarizing the problem of asset forfeiture abuse, as exemplified by dubious practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt….

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

I previously wrote about this problem here, here, and here. In 2009, the Supreme Court heard a case addressing the question of whether forfeiture policies that give owners little or no opportunity to challenge the seizure of their property violates the Due Process Clause of the Fourteenth Amendment, which bans states from depriving people of “life, liberty, or property, without due process of law.” That case was dismissed on procedural grounds. Hopefully, the justices will revisit the issue in the future. As a lower court judge, Justice Sonia Sotomayor wrote an important opinion striking down a particularly egregious asset forfeiture regime on due process grounds. I hope the Supreme Court ultimately adopts a similar approach.

UPDATE: I have made minor changes to this post to eliminate some awkward wording.