Is the Government Protecting your Fifth Amendment Rights?
Authored by: Kayla DeAlto, staff editor
Over the years Congress has expanded the government’s authority to take possession of criminal’s assets so that criminals do not benefit from their illegal proceeds. There are two forms of forfeiture, which the government uses to take the assets, they are criminal and civil forfeiture.[1] Criminal forfeiture which allows for due process has not stirred any controversy, but civil forfeiture on the other hand has. The procedure behind civil asset forfeiture, and its lack of due process, has stirred up debates over the years questioning its fairness and compliance with constitution. Civil asset forfeiture should not continue to go unchecked but should be more heavily regulated to protect innocent citizens and make sure due process is protected.
Reforms by state legislatures and Congress have tried to make sure that agencies do not use civil forfeiture as a profit-making tool and to restore due process rights. However, there needs to be more regulation done at the state level to make sure innocent citizens are protected. The FAIR Act, which was introduced on June 25, 2020, is currently in the Senate Committee on the Judiciary awaiting approval. To expediate the process and ensure that American’s rights are not further violated more states should reform their civil forfeiture laws calling for reforms similar to the FAIR Act.
Now what exactly is civil forfeiture? Civil forfeiture is when the government takes your property without a conviction or even charging the property owner.[2] There are two forms of civil forfeiture, judicial civil forfeiture and non-judicial civil forfeiture, also called administrative forfeiture. Both forms of civil forfeiture are in rem actions, meaning they are against the property.[3] Judicial forfeiture occurs when there is an action brought in court against the property. The property is the defendant, and no criminal charge is brought against the owner. Administrative forfeiture allows law enforcement agencies to seize property without judicial involvement when the amount does not exceed $500,000. Since administrative forfeiture does not require judicial intervention for property less than 500,000, it is the usual default for most agencies.[4]
In order to take the property from the owner the government must show that “the property facilitated criminal activity or represents criminal proceeds” by a preponderance of the evidence. [5] Civil forfeiture is a tool used by law enforcement agencies in order to fight against criminals and criminal organizations. Civil forfeiture is important for law enforcement agencies because it allows them to “punish criminals, deter illegal activity, disrupt criminal organizations, remove the tools of the trade from criminals, return assets to victims and help protect the community.”[6]
The usefulness of civil forfeiture, however, has been questioned over the years and continues to be challenged. The debate has centered around the question of if civil forfeiture violates due process and if it is more about pursuing revenue than actually fighting crime.[7] Many Americans have had their property taken from them and have had to fight for it back.[8] In many cases the owner does not contest the forfeiture because of legal expenses.[9] However, in other cases the owner contests the forfeiture and is asked to prove that their property did not facilitate criminal activity or was not a result of criminal activity proceeds.[10] The burden of proof, by a preponderance of the evidence, is a low standard which the government must meet. Once that burden is met, it is up to the owner to prove their case.[11] This results in a reverse burden of proof and a move away from the innocent until proven guilty theory.[12]
Many innocent people have had their property taken from them by law enforcement agencies using civil forfeiture. The institute of Justice, an organization that works with victims of civil forfeiture to re-gain their property, has many examples of the harm civil forfeiture has caused innocent citizens. In one case a retired woman named Rebecca Brown had her father’s life savings seized when the Drug Enforcement Agency took the $82,000 she was traveling with and never charged her with a crime or arrested her.[13] In another case, Charles Clarke had his $11,000, that he saved up, seized at the airport by law enforcement when they suspected his bag smelled like marijuana. However, they never found anything illegal in his bag but still seized his money. The government then held his money and required him to prove that the money was legitimate to get it back. [14]
These stories have stirred up reform among many states. As of today, three states have completely abolished civil forfeiture and only use criminal forfeiture to take property.[15] Another thirty-five states and the District of Columbia have reformed their civil forfeiture laws. Out of those states fifteen of them reformed their laws to require a conviction in criminal court to forfeit property in civil court.[16] This is different than criminal forfeiture because although they both require a conviction; in a criminal case the forfeiture of the property is litigated in criminal court. While in a civil forfeiture case, which requires a conviction, the forfeiture of the property is litigated in civil court and lacks safeguards, which are normally required in a criminal court such as “requiring proof beyond a reasonable doubt.”[17] Another thirteen states require the government to carry the burden of proof when the owner’s defense is that they are innocent of any crime and their property should not be forfeited. Before this the owner had the burden of proving by a preponderance of the evidence that they are an innocent owner.[18]
These state reforms have come along with the introduction of the Fifth Amendment Integrity Restoration Act. The FAIR Act limits the forfeiture proceeds the law enforcement agencies receive from civil forfeitures. Normally state law does not allow law enforcement agencies to keep the money they receive from civil forfeitures but under an “equitable sharing” loophole the state agencies can work together on a case with the federal agencies and keep up to eighty percent of the forfeited proceeds, which they would not have been able to keep under state law.[19] The FAIR Act also requires a higher burden of proof by the government, follows an innocent until proven guilty approach and enacts strong reporting requirements.[20] U.S. Senator Rand Paul said that “[t]he FAIR Act will protect Americans’ Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process. It guards against abuse while maintaining the ability of courts to order the surrender of proceeds of crime.”[21]
In conclusion, our government has not been doing everything in its power to protect our fifth amendment rights. In order to make sure that innocent citizens’ property is not wrongfully taken from them using civil forfeiture the states need to step in and enact legislative reform. The FAIR Act, which would be a big win for civil forfeiture reform, is still awaiting to be heard and state legislatures should not just sit around but should continue to reform civil forfeiture laws for the better.
[1] Asset Forfeiture, FBI, https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture (last visited Feb. 13, 2021).
[2] Asset Forfeiture, FBI, https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture (last visited Feb. 13, 2021).
[3] Asset Forfeiture, FBI, https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture (last visited Feb. 13, 2021).
[4] Asset Forfeiture, FBI, https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture (last visited Feb. 13, 2021).
[5] Asset Forfeiture, FBI, https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture (last visited Feb. 13, 2021).
[6] Asset Forfeiture, FBI, https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture (last visited Feb. 13, 2021).
[7] Brian D. Kelly, Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture, Inst. for Justice, June 2019, https://ij.org/wp-content/uploads/2019/06/Fighting-Crime-or-Raising-Revenue.pdf.
[8] Rand Paul and Tim Walberg, Rand Paul: How Feds Can Legally Steal Your Money, CNN, Jan. 20, 2015, https://edition.cnn.com/2015/01/30/opinion/paul-walberg-civil-asset-forfeiture/index.html.
[9] Ian MacDougall, Police Say Seizing Property Without Trial Helps Keep Crime Down. A New Study Shows They’re Wrong., ProPublica, Dec. 14, 2020, https://www.propublica.org/article/police-say-seizing-property-without-trial-helps-keep-crime-down-a-new-study-shows-theyre-wrong.
[10] Isaac Schorr, Civil-Asset Forfeiture Should Be An Easy Place to Start on Criminal-Justice Reform, Nat’l Review, Aug. 21, 2020, https://www.nationalreview.com/2020/08/fair-act-civil-asset-forfeiture-reform-bill/.
[11] Isaac Schorr, Civil-Asset Forfeiture Should Be An Easy Place to Start on Criminal-Justice Reform, Nat’l Review, Aug. 21, 2020, https://www.nationalreview.com/2020/08/fair-act-civil-asset-forfeiture-reform-bill/.
[12] Legislative Reforms, End Forfeiture, https://endforfeiture.com/legislative-reforms/ (last visited Feb. 13, 2021).
[13] DEA and TSA Airport Forfeitures: Pittsburgh Retiree Sues Federal Government to Get His Life Savings Back, Inst. For Justice, https://ij.org/case/dea-tsa-forfeitures/ (last visited Feb. 20, 2021).
[14] Ordinary Americans Are Victims of Policing for Profit in our Nation’s Airports, Inst. For Justice, https://ij.org/case/kentucky-civil-forfeiture/ (last visited Feb. 20, 2021).
[15] Civil Forfeiture Reforms on the State Level, Inst. for Justice, https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/ (last visited Feb. 13, 2021).
[16] Civil Forfeiture Reforms on the State Level, Inst. for Justice, https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/ (last visited Feb. 13, 2021).
[17] Frequently Asked Questions About Forfeiture, End Forfeiture, https://endforfeiture.com/what-is-civil-forfeiture/ (last visited Feb. 20, 2021).
[18] Civil Forfeiture Reforms on the State Level, Inst. for Justice, https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/ (last visited Feb. 13, 2021).
[19] https://www.abcactionnews.com/news/local-news/i-team-investigates/critics-say-more-needs-to-be-done-in-florida-to-close-policing-for-profit-loophole
[20] Dr. Rand Paul’s FAIR Act Restores Respect for 5th Amendment, Rand Paul U.S. Senator for Kentucky, https://www.paul.senate.gov/news/dr-rand-paul’s-fair-act-restores-respect-5th-amendment (last visited Feb. 12, 2021).
[21] Dr. Rand Paul’s FAIR Act Restores Respect for 5th Amendment, Rand Paul U.S. Senator for Kentucky, https://www.paul.senate.gov/news/dr-rand-paul’s-fair-act-restores-respect-5th-amendment (last visited Feb. 12, 2021).