Congress Tries to Stop Policing for Profit Through Civil Asset Forfeitures

WASHINGTON — A U.S. House panel took another step Tuesday toward clawing back what some lawmakers call the “weaponization” of federal law enforcement to advance special political interests.

The House Judiciary Subcommittee on the Constitution and Limited Government was looking specifically at a program that allows the government to seize cash, drugs, guns and other assets from suspects before they are convicted of crimes.

The money can be shared among federal, state and local governments that participate in the law enforcement efforts.

Various forms of the civil asset forfeitures started in the 1970s, all with the original intent of creating a disincentive for crime.

The problem, according to witnesses at the subcommittee hearing, is that government agencies appear to use the program to enrich themselves, even when they might be trampling the civil rights of innocent persons.

“Law enforcement gets to keep the money,” said Kirby Thomas West, an attorney for the civil rights advocacy group Institute for Justice.

Not only is it unjust but “civil forfeiture doesn’t work” in reducing crime, West said.

Unlike criminal proceedings, the persons targeted for property seizure have the option of representation by attorneys but no constitutional right to it, she said. 

Rep. Mary Gay Scanlon, D-Pa., cited reports showing the average amount of money seized during civil asset forfeitures was $13,000.

The cost of hiring an attorney for the often protracted proceedings could be $35,000, thereby creating an incentive to pay the money even without proof of criminal liability, she said.

“We should create guardrails against the persistent abuses of civil asset forfeiture laws,” Scanlon said.

She told the story of an elderly woman in Pennsylvania whose son was convicted of possessing a small amount of marijuana while living with her. Police then seized her home, valued at around $60,000, and her car, leaving her homeless.

“Current federal standards for civil forfeiture invite abuse,” said Rep. Mike Johnson, R-La., the subcommittee chairman. He called the settlements by persons trying to avoid higher legal costs a “sue and settle tactic” by government agencies.

John Shu, an attorney and legal commentator on constitutional law, told the subcommittee, “We’re talking in the tens of billions” of dollars in money taken from civil asset forfeitures nationwide that cannot be traced to the ultimate recipients.

The leading proposal to eliminate what critics call the injustices of civil asset forfeitures is the Fifth Amendment Integrity Restoration Act. It would raise the level of proof necessary for the federal government to seize property by requiring prosecutors to show “by clear and convincing evidence” the owner of property being seized was using it to commit a crime.

Other pending proposals would guarantee a right of legal representation to persons whose property might be seized and would prohibit law enforcement agencies from sharing the forfeited money. Instead, the money would go into the federal government’s general fund.

Other lawmakers said the claims of abuses of civil asset forfeiture laws were exaggerated.

“There is simply no credible evidence to support these allegations,” said Rep. Jerry Nadler, D-N.Y.

He and other Democrats suggested lawmakers who seek to cut back on government regulations are pushing the abuse stories, perhaps endangering members of the public.

One example some Democrats mentioned was the Clean Air Act, which sometimes can result in seizures of property from the worst polluting businesses. Making it harder to seize their assets could result in more pollution, they said.

Most recently, the Justice Department is using civil asset forfeiture laws to seize property of Russian oligarchs accused of evading sanctions during their war against Ukraine.

Federal prosecutors filed an asset forfeiture complaint in February against luxury properties in New York and Florida valued at $75 million that are owned by Russian oligarch Viktor Vekselberg. He also is accused of money laundering.

You can reach us at [email protected] and follow us on Facebook and Twitter