Rep. Tim Walberg introduces bill to curb asset forfeiture abuse

Last week, it was Sen. Rand Paul (R-Ky.) in the Senate. Now Rep. Tim Walberg (R-Mich.) has introduced a bill in the House to rein in civil federal asset forfeiture abuses. (Disclosure: I spoke on a panel with Walberg and Scott Bullock of the Institute for Justice at an event on Tuesday.)

Walberg’s legislation, introduced Monday, would raise the standard of proof necessary for the government to seize property and reinstate due process so the government is required to  prove a property owner’s involvement in criminal activity.

“To me, it sounds like common sense,” Walberg said. “It does not detract away from good law enforcement going after criminals or criminal activities.”

The bill also addresses what Scott Bullock of the Institute for Justice calls a “complete violation” of federalism built into the current law by limiting equitable sharing agreements between the Department of Justice and local or state government agencies.

Bullock’s comment about federalism is important. Many state legislatures have passed laws to address and correct forfeiture abuses. For example, some states require police agencies to meet a higher burden of proof that a piece of property is connected to criminal activity before they can seize it. Some states require forfeiture proceeds to be turned over to a general fund, a schools fund or some other fund rather than letting police agencies and prosecutor offices keep the bounty. But under equitable sharing, the local police agency can simply call up a federal law enforcement agency such as the Drug Enforcement Administration to turn a case into a federal investigation, government by federal law. The feds then take 10 to 20 percent of the loot and give the rest back to the state police agency. The process effectively subverts the will and intent of the state legislatures.

It’s notable that these two reform bills have been introduced by Republicans. For Paul, this is clearly a product of his libertarian influences. But the politics of forfeiture have always been interesting and perhaps a bit surprising. It’s true that the more problematic federal forfeiture statutes were introduced and championed by Republicans in the 1980s, although they had plenty of support from Democrats. But the movement to reform forfeiture has also generally come from the right. (The ACLU has also been a longtime critic of the practice.) The 2000 reforms to federal forfeiture laws, for example, were mostly due to the efforts of the late Rep. Henry Hyde (R-Ill.) And when the Supreme Court has heard forfeiture cases, it’s usually the court’s conservatives who have expressed concerns about the practice. Tuesday’s event was hosted by the conservative Heritage Foundation. My guess is that the right has been more outraged by civil forfeiture than other criminal justice and drug war abuses because it’s so offensive to the idea of property rights.

In related news, Bullock’s organization, the libertarian public interest law firm the Institute for Justice, has just launched “End Forfeiture Now,” a Web site dedicated to, well, ending forfeiture now. From the press release:

“When Americans learn that law enforcement officials can take their property without convicting them of a crime, they are outraged and want the practice to stop,” said Institute for Justice Senior Attorney Scott Bullock. “This online initiative educates citizens about the pernicious practice of civil forfeiture and what they can do to fight back.”

Two fundamental problems lie at the heart of civil forfeiture laws.  First, Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you can prove it innocent.  

Moreover, as documented in IJ’s 2010 report, Policing for Profit, state and federal laws give police and prosecutors a direct incentive to seize and keep cash and property in order to pad their budgets. For example, investigators in Georgia found more than $700,000 in questionable expenses by Camden County’s sheriff between 2004 and 2008, including a $90,000 Dodge Viper and a $79,000 boat. In fact, only eight states prohibit law enforcement agencies from keeping the property they seize.

“Forfeiture reform is desperately needed in nearly all states and at the federal level,” continued Bullock. “People shouldn’t lose their property without being convicted of a crime, and law enforcement shouldn’t be able to profit from other people’s property. This online initiative provides citizens with the ability to learn about and become active in the fight against civil forfeiture in the courts of law, the court of public opinion, and at the grassroots.”

It’s good to see so much movement on this issue. In addition to the general injustice of the practice, it’s also a problem that disproportionately affects minorities and low-income communities. Bullock pointed out at the event that the typical seizure is for less than $500. So while the reform bills have so far been written up by Republicans, there’s plenty of reason for progressives to get on board.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · July 30