Justice Clarence Thomas made headlines last month when he criticized civil forfeiture, a notorious police practice that allows law enforcement to confiscate property, even from people who have never been charged with a crime. “This system,” he wrote, “has led to egregious and well-chronicled abuses.”
Hearing one of the Supreme Court’s most conservative members denounce such a shameful violation of our civil liberties gives us hope that civil forfeiture can be drastically curtailed.
To prevent future abuses, I, along with Rep. Tim Walberg, reintroduced the Fifth Amendment Integrity Restoration Act (FAIR Act) in March. The FAIR Act would dramatically reform federal civil-forfeiture laws to respect the American people’s Fifth Amendment rights while maintaining the ability of courts to order the surrender of proceeds from crime.
During the 1980s, as the war on drugs was ramping up, Congress enacted legislation that made it far easier for the federal government to seize cash, cars, and even real estate.
Worst of all, Congress created powerful financial incentives to pursue civil-forfeiture cases.
Once a property is forfeited, federal agencies can auction it off and collect up to 100 percent of the proceeds or retain it for their own use; previously, forfeiture proceeds were directed to the Treasury’s General Fund.
According to a report by the Institute for Justice, a public interest law firm, the Justice Department’s Assets Forfeiture Fund skyrocketed from just under $94 million to more than $4.5 billion between 1986 and 2014.
State and local law enforcement can get a cut of the action, too, thanks to a program that Congress also created in the 1980s. Under “equitable sharing,” police and prosecutors can bypass state laws and collaborate with a federal agency to forfeit property under federal law. If successful, local and state agencies can even receive up to 80 percent of the proceeds.
In a bombshell report released last week, the Office of Inspector General (OIG) found that the Justice Department has funneled more than $6 billion in equitable-sharing funds to local and state agencies since 2000. Several law enforcement officials even told the OIG that the “primary reason” they turn to equitable sharing is because “their states’ forfeiture laws restrict law enforcement’s use of forfeiture.”