In an ideologically polarized era, finding common ground can be tricky. Finding something on which almost everyone—right or left—seems to agree can feel impossible. In 2020, the Capital Research Center (CRC) examined civil asset forfeiture and noted how criticism of the practice had brought together a rather improbable ideological coalition. As efforts to reform forfeiture laws continue into 2023, it is worth revisiting the unusually broad political consensus that has formed around the issue.
What Is Civil Asset Forfeiture?
Civil asset forfeiture (or simply civil forfeiture) is a procedure through which law enforcement can confiscate property that they suspect is connected to criminal activity. No arrest, criminal charge, or conviction is required. Moreover, in many states innocent third-party property owners bear the burden of proving that they had nothing to do with the alleged criminal activity if their property was forfeited due to someone else’s wrongdoing—the opposite of the traditional “innocent until proven guilty” paradigm. Law enforcement is also often entitled to keep at least a portion of seized property, and this is widely criticized as a perverse incentive to pursue forfeitures.
While supporters of civil forfeiture correctly point out its utility as a crime-fighting tool, critics argue that in practice it is often abused, or at the very least it is implemented in a manner that most Americans consider to be unjust. Regrettably, dubious uses of civil asset forfeiture are easy to find, and reform advocates have scored significant legislative and judicial victories in recent years. According to the Institute for Justice, 37 states and the District of Columbia have reformed their civil forfeiture laws in some manner since 2014. Four states have abolished it entirely.
The case of Stephen Lara, which The Washington Post covered in 2021, provides an example of how civil forfeiture can operate in practice. After he was pulled over in Nevada for allegedly following a truck too closely, police conducted a consensual search of Lara’s vehicle and found almost $87,000 in cash. The officers suspected that it was drug money, but they found nothing illegal in Lara’s vehicle and told him that he was free to go. Nevertheless, the police confiscated his money, and Lara was later told that they intended to keep it if he did not intervene to get it back. Lara insisted that he had earned the money legitimately and produced evidenced that seemed to support this, but only after he hired an attorney and filed a lawsuit did the government agree to return the cash.
The footage of Lara’s traffic stop is worth watching, as few would conclude that what happened to him was fair or just. On the one hand, given the circumstances, it may not have been unreasonable for the officers to suspect that the cash might be drug money. At the same time, it was entirely reasonable for Lara to feel like he “had just been literally robbed on the side of the road by people with badges and guns,” as he told the Post. Carrying large amounts of cash is not a crime, and Lara was never accused of any other wrongdoing. Yet the government took his property anyway. Therein lies the core problem with civil forfeiture.
In Lara’s case, the Drug Enforcement Administration (DEA) also became involved through a mechanism called equitable sharing, whereby the federal government is able to “adopt” property forfeited to local police, keep a portion of it for themselves, and return up to 80 percent of the remainder to the local department. In addition to furthering law enforcement’s financial incentive to conduct forfeitures, equitable sharing is particularly controversial because it allows the forfeiture to proceed under federal law, rather than what is often more restrictive state law.
For the most part, those who defend civil asset forfeiture against its many critics represent law enforcement and government interests. They argue that civil forfeiture disrupts crime by removing ill-gotten gains from criminal hands and can enable the seizure of criminally linked property even if the actual criminals are beyond the law’s reach. Supporters also note that proceeds from civil forfeiture can help fund law enforcement by defraying costs that taxpayers might otherwise be responsible for, and in some cases the proceeds can be used to help compensate victims.
The Consensus Opposition
That said, what is most remarkable from a public policy standpoint is how opposition to civil asset forfeiture has brought together Americans who have little else in common politically. This is borne out in polling, which has repeatedly shown that significant margins oppose the practice, and in 2016 both the Republican and Democratic party platforms endorsed civil forfeiture reform. Perhaps the best proxy for understanding the sheer ideological breadth of civil forfeiture’s critics is through surveying the positions taken by prominent public policy advocacy groups, who are otherwise often at odds with one another.
For example, TheBestSchools.org recently posted a list of what it considered to be the 50 most influential American think tanks and categorized each by its “political orientation.” While many of these 50 groups have never taken a position on civil forfeiture, at least a third have publicly criticized the practice to some degree or published material by writers who did. This includes think tanks that were characterized in the list as being conservative, libertarian, liberal, progressive, and independent. Acknowledging that such labels are somewhat subjective and can be difficult to apply, it is nevertheless worth highlighting some examples from that list and elsewhere.
Libertarian groups have been among civil forfeiture’s most vigorous critics. The Institute for Justice is well-known for its work opposing the practice, and groups like the Cato Institute, the Pacific Legal Foundation, and the Competitive Enterprise Institute have all spoken out strongly against civil forfeiture too. So has the Koch brothers–associated Americans for Prosperity. Likewise, organizations that are widely viewed as pillars of modern conservativism such as Americans for Tax Reform, the Heritage Foundation, the Manhattan Institute, the American Enterprise Institute, the American Conservative Union, and the American Legislative Exchange Council (ALEC) have all been critical of civil asset forfeiture.
Opposition also comes from the other end of the spectrum, including from liberal and left-of-center groups like the Center for American Progress, the Urban Institute, and the Southern Poverty Law Center. The American Civil Liberties Union (ACLU) has also long opposed civil asset forfeiture, though it should be noted that the group has also adopted aggressively anti-police rhetoric in recent years and expressed support for extreme (and extremely unpopular) proposals to defund the police more broadly.
Indeed, hostility toward civil asset forfeiture extends to the furthest left reaches of the American nonprofit spectrum. The National Police Accountability Project, an independent 501(c)(3) nonprofit that describes itself as a “project” of the National Lawyers Guild, has also called for the practice to be reformed or eliminated. The guild is as radically anti-police as they come, arguing that it constitutes “an inherently violent, racist institution that cannot be reformed” and that it must be abolished wholesale as an instrument of “the white supremacist, capitalist, settler colonial state.” In nearly everything it stands for the guild could not be positioned further from the mainstream American Right, so it is truly something to see the two sides make common cause on an issue like civil asset forfeiture.
Consider a rather striking example of this improbable alliance: a 2016 letter supporting comprehensive civil forfeiture reform and urging then-Attorney General Loretta Lynch (a notable defender of the practice) to abolish the equitable sharing program. It was signed by conservative groups like Americans for Tax Reform, the American Conservative Union, and FreedomWorks; libertarian groups like the Institute for Justice; liberal groups like the ACLU, the Leadership Conference on Civil and Human Rights, and the NAACP; and radical-left groups like the National Lawyers Guild—with the Church of Scientology thrown in as well. It is difficult to imagine such an ideologically diffuse coalition coming together on any other political issue.
Another example is the slate of amici who lined up against Indiana’s use of civil asset forfeiture in the 2019 Supreme Court case of Timbs v. Indiana. Exactly five organizations representing their eponymous local government constituents—the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association—filed in support of the state. On the opposite side, dozens of groups as diverse as Judicial Watch, the ACLU, the Goldwater Institute, the Southern Poverty Law Center, the Cato Institute, the R Street Institute, the Brennan Center for Justice, Americans for Prosperity, and the U.S. Chamber of Commerce filed in support of petitioner Tyson Timbs (who ultimately prevailed).
Thoughts and Takeaways
There are a few takeaways from all of this. First, civil asset forfeiture can be used to disrupt serious criminal activity, while it can also unfairly deprive innocent people of their property. The key question therefore becomes the direction in which to err. Is it more important to meticulously protect the rights of every American, even if we acknowledge that this will allow some ill-gotten gains to slip away into illicit channels? Or should we accept a certain measure of injustice for the sake of doing everything we can to thwart drug trafficking and other criminality? It certainly appears that most Americans of all ideological stripes who have asked themselves this question have settled on the former. That should weigh heavily on the minds of those responsible for considering further legislative reform.
This brings up a second point. Even though it is often not perceived as such, government itself can and does function as its own special interest. CRC has written about this phenomenon in the context of another similarly controversial practice that critics call Home Equity Theft. The basic dynamics are similar to those at work in civil asset forfeiture: Government has a substantial financial interest in defending a practice that is permitted under existing law, despite mounting public criticism. Private-sector special interests are of course subject to precisely this same motivation—it is a natural one—but the unique powers possessed by government/law enforcement mean that their influence on public policy warrants particular scrutiny.
A final word on policing. Some—especially among the radical “defund the police” types—might be tempted to exploit the obvious problems with civil asset forfeiture to further denigrate what is already the tremendously difficult and overly criticized profession of law enforcement. Instances of abuse (obviously) aside, it is rather unfair for society to demand that its police devote themselves fully to their crime-fighting responsibilities while simultaneously criticizing them for using every legal method on the books in order to do so. Good police—who represent the vast majority—do their job to the utmost of their abilities, while also operating within the limits set for them by the American people. There appears to be broad agreement that those limits should be redrawn to exclude civil asset forfeiture.