Money Doesn't Grow on Trees: Civil Asset Forfeiture Reform is a Necessary Precursor to Police Reform.

• Author: Weaver, Elizabeth

1. INTRODUCTION

   Communities are scrutinizing the credibility of law enforcement as concerns associated with unfair treatment and police misconduct mount. (1) Despite ever-present demands for reform, law enforcement policy and practices continue to undercut efforts to build community relationships. (2) Calls to defund police, whether by abolitionists or those who argue that modern policing encompasses job duties law enforcement should never perform, (3) entered mainstream conversations about police reform after the death of Eric Garner in 2014, and reemerged when George Floyd was murdered in 2020. (4) While it is true that financial constraints can force policy change, defunding the police could have unintended negative consequences to the public by increasing police reliance on revenue from civil asset forfeiture. (5) At present, the United States Department of Justice's Asset Forfeiture Program provides a way for state and local police departments to supplement budgets by seizing property from individual citizens. (6)

   Through civil asset forfeiture, law enforcement agencies can seize cash, real estate, vehicles, and other property without filing criminal charges against the property owner, much less securing a conviction. (7) Civil asset forfeiture only requires probable cause--a reasonable belief that the property in question was or could be used in the commission of a crime. (8) Forfeiture is lucrative for law enforcement agencies, and the problem is growing. Between 1986 and 2014, federal forfeitures grew by 4667%, reaching $4.5 billion per year. (9) In general, the agency responsible for the seizure can keep up to 100 percent of the seized property or, more often, the proceeds from its sale. (10) For communities to view law enforcement officers as legitimate actors who maintain order and administer justice, officers' actions must appear fair in the eyes of the community; (11) policies and procedures like civil asset forfeiture, however, continue to erode public confidence in police.

   Part II of this Note discusses the legal background of civil asset forfeiture, including the United States Department of Justice and Department of the Treasury's Equitable Sharing Program. Part III explores recent developments in civil asset forfeiture law, considering the Supreme Court's decision in Timbs v. Indiana and explaining why the decision does not solve existing problems. (12) Part IV explains the relationship between budget reductions and increases in civil asset forfeiture activity and explores the effectiveness of legislative roadblocks to the misuse of civil forfeiture. Current policy motivates law enforcement to pursue civil forfeiture. While defunding the police to push reform is popular among abolitionists, (13) until and unless civil forfeiture procedure is reformed, such action will only negatively impact the public.

2. LEGAL BACKGROUND

   October 2020 exhibited the fourteenth annual 'Operation Rolling Thunder,' (14) a highway interdiction event in Spartanburg County, South Carolina. (15) Each year, for a week, officers focus their efforts on a stretch of Interstate 85, hoping to seize drugs, guns, and money from drivers committing minor traffic violations. (16) Operation Rolling Thunder seized $319,595.00 in that one week. (17) Officers extolled the fun they had participating in Operation Rolling Thunder, (18) noting that "nearly everyone does something illegal if you follow them long enough." (19) Projects like Operation Rolling Thunder rely heavily on civil asset forfeiture. (20) To initiate a forfeiture proceeding, law enforcement need only show probable cause that the property in question was used in the commission of a crime; (21) it is not necessary to actually charge the owner of the property with that crime. Forfeiture "inflicts the harsh punishments associated with criminal proceedings without the constitutional protections guaranteed by a criminal trial." (22) Even more concerning, participating agencies are generally able to keep the property or, more often, the proceeds from its sale. (23)

   1. Sticky Fingers or the Midas Touch: Civil Asset Forfeiture Policy and Procedure

      Civil asset forfeiture exists to punish and deter criminal activity by depriving criminals of property used in or acquired through illegal activities. (24) While criminal forfeiture happens after an individual has been convicted of a crime as part of a criminal sanction, (25) civil forfeiture is not attached to a criminal proceeding. (26) Supporters of civil asset forfeiture "believe that if the government were able to deprive narcotics dealers of significant portions of the illegal gains they realize, this would have an important deterrent effect and would stem the growth of drug trafficking." (27) Since the beginning of the War on Drugs, (28) "law enforcement agencies have used civil asset forfeiture laws to strip Americans of billions of dollars in cash, cars, real estate and other assets." (29)

      In theory, forfeiture stalls crime by removing capital from individuals participating in criminal activity. (30) In reality, "increased forfeiture funds ha[ve] no meaningful effect on crime fighting." (31) Instead, forfeiture distorts the relationship between the police and the public, encouraging law enforcement to engage in behavior that maximizes profit rather than ensuring public safety. (32) In recent years, civil asset forfeiture has become unquestionably profitable. (33) States and the federal government have seized a combined total of at least $68.8 billion over the last twenty years through civil asset forfeiture. (34) Because the law enforcement agency responsible for seizing the property often keeps it, there is a strong motivation to pursue forfeiture. (35)

      Ordinarily, when a state seeks to sanction an individual citizen, it will proceed in personam by filing criminal charges. (36) With civil forfeiture, however, a state proceeds in rem, directly against the property. (37) The Supreme Court of the United States has routinely upheld in rem proceedings that "enable the government to seize the property without any pre-deprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent." (38) Because forfeiture proceedings are civil, certain due process protections that would accompany a criminal prosecution are missing, including "the right to a jury trial and a heightened standard of proof." (39) Civil asset forfeiture generally requires only that the state show, by a preponderance of the evidence, that the property at issue was, or might be used in the commission of a crime. (40) Because there is no criminal charge requirement, eighty percent of individuals whose assets are seized by law enforcement are not charged with a crime. (41)

      When a civil forfeiture action is initiated, the state files an in rem action against real or personal property, essentially accusing the property of a crime. (42) Historical forfeitures were vastly different than those allowed under modern statutes. (43) The evolution of criminal justice and asset forfeiture statutes is now far removed from the "ancient notion of civil forfeiture." (44) These historical statutes applied only to a few specific offenses, such as customs violations and piracy, (45) proceeding against property when an individual responsible for a crime was outside the personal jurisdiction of the United States. (46) These statutes also typically included only the instrumentalities of the crime, "not the derivative proceeds of the crime." (47)

      Current civil forfeiture laws are written, at least partially, to punish property owners whose property has been used for criminal purposes. (48) These statutes, passed by Congress under the 1970 Comprehensive Drug Abuse Prevention and Control Act, are one part of the larger War on Drugs. (49) Originally, Congress limited seizures to "drugs and all equipment used in their manufacture and transit." (50) As Congress expanded the types of assets subject to civil forfeiture, the connections between assets and crime became more questionable. (51) The 1984 Comprehensive Crime Control Act further expanded civil forfeiture and earmarked all proceeds from seizures for law enforcement purposes. (52) In doing so, the law "created a financial incentive for policing agencies to prioritize anti-drug law enforcement." (53)

      Also missing from civil asset forfeiture, the concept of "innocent until proven guilty." Instead of the government having to prove that the property was involved in a crime, the burden is on the property owner to prove that the property is not guilty of a crime. (54) Often, the value of the seized property is less than the cost of hiring an attorney and paying court fees, (55) and challenging a cash seizure takes at least a year on average. (56) As a result, almost ninety percent of forfeitures are never challenged. (57)

   2. Do You Have Cash in the Vehicle: Targets of Civil Asset Forfeiture

      People who deal primarily in cash are at increased danger of falling victim to forfeiture. After the stock market crash in 2008, Lisa Olivia Leonard, an agent for the Internal Revenue Service, began storing money in safes. (58) In 2013, Ms. Leonard sent a safe containing more than $200,000 and a bill of sale for a property in Pennsylvania with her son to purchase a home in Texas. (59) The safe never made it. (60) Ms. Leonard's son was pulled over and arrested for a traffic violation and suspicion of money laundering when a police officer discovered the safe in the trunk of the car. (61) The officer contacted Ms. Leonard upon learning that the safe belonged to her, but she refused him permission to open it. (62) The officer obtained a warrant and at later forfeiture proceedings, testified that in his experience, "carrying large amounts of U.S. currency is commonly associated with the illegal narcotics trade." (63) A Texas trial court awarded the more than $200,000 to the state in a forfeiture...