Recent coverage in both popular and independent media has drawn national attention to the practice of civil asset forfeiture.
Civil asset forfeiture (or CAF) is the practice of taking legal action against an inanimate object for its alleged role in criminal activity, regardless of the owner’s complicity. While ostensibly nonsensical, one need only look at cases like United States v. $10,500 in U.S. Currency, State of New Jersey v. One 1990 Ford Thunderbird, or Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado Street to see the utter absurdity of the practice.
CAF is different from criminal asset forfeiture, whereby the State takes one’s property after having convicted the accused, who is entitled to all the procedural safeguards of a criminal trial.
Since a Ford Thunderbird does not enjoy the same presumption of innocence a criminal defendant does, the owner of the property bears the burden of proof in establishing their innocence in the matter in 38 states (including ostensibly libertarian-minded states like Idaho, New Hampshire, and Texas).
Six states have laws that vary depending on the property, and only six states place the burden of proof on the government.
Given the widespread tolerance of the practice, it is no surprise that abuses are relatively easy to find.
A particularly outrageous example of CAF abuse was recently highlighted in ProPublica. Rochelle Bing, a home health assistant, faced the potential loss of her Philadelphia home after her son sold crack-cocaine to an informant. She was unaware that her son was engaged in such activities, and no evidence of narcotics distribution was found when law enforcement officials searched the house.
However, as Pennsylvania is amongst the 38 states that require the property’s owner to prove their innocence and that property can be seized on the preponderance of the evidence it was used in the commission of a crime, Ms. Bing was forced to fight for her home. With the assistance of the University of Pennsylvania’s Legal Clinic, Ms. Bing was able to retain her property, though not before 23 separate court appearances over two years.
While the Philadelphia District Attorney stands to the benefit from the post-seizure sale of the home, the office defends the practices suggesting that neighborhoods benefit from the removal of “nuisance properties.”
This case, while tragic, is by no means uncommon. In FY 2012, the federal government alone remitted over $447 million back to the states in equitable sharing payments (payments for property seized by a federal agency paid to state and local police agencies in order to “foster cooperation” among the different strata of law enforcement).