End Asset Forfeiture

Background Information

Federal and/or state civil asset forfeiture programs have violated the following provisions of the Constitution:

4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5th Amendment

No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

6th Amendment

In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.

8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Some History

In medieval England, asset forfeiture meant that the King could directly profit from suspected law-breaking, because money and property taken by the royal government would enlarge the King's treasury. This created an incentive for the King to increase the number of laws and to seize the property of more and more "suspected" law-breakers. The practice generally fell into disuse in the American colonies and faded out in England in the 19th century. Joseph Story, an early 19th -century Supreme Court Justice, wrote that experience with the English system inspired the 8th Amendment's prohibition on excessive fines, which was then synonymous with forfeiture. (Source: Cecil Greek, "Drug Control and Asset Seizures: A Review of the History of Forfeiture in England and Colonial America.")

Aside from piracy prosecutions, civil asset forfeiture was virtually non-existent in early America and fell into disuse until Prohibition. After Prohibition, it again disappeared until 1970, when Congress revived it in its wars on drugs and organized crime. (Source:Robert Shaw, "Losing One's Livelihood to the Grasp of Fiction: The Law of Civil Forfeiture in the United States")

CAFRA

Did the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) fix the problem? It is true that under CAFRA, if the government's seizure of property is challenged by the owner, the government must provide a "preponderance of evidence" that the property was linked to a crime. However,

• The property is seized not based on the "preponderance of evidence," but on "probable cause," as the Drug Enforcement Agency readily admits. "Probable cause" is a much lighter legal standard.
• Instead of "innocent until proven guilty," the owner must prove he was unaware his property was somehow used in a crime.
• If the owner contests and loses his case, he must pay a fine.
• The case is not decided by a jury of the owner's peers, but by a single judge.
• Although CAFRA directs the court to balance the forfeiture against the gravity of the offense, the prosecution does not even have to prove that the owner was guilty of an offense.