The Government can proceed against an individual in two ways: either against the individual “personally” known as “in personam” or against their property known as “in rem.”
The latter is known as civil forfeiture.
During the first two hundred years of this nation’s history, civil forfeiture laws were directed almost exclusively to admiralty and customs enforcement. This was in the tradition of the British Navigation Acts of 1651, which were designed to control trade between England and the rest of the world, including the American colonies.
Civil forfeiture changed significantly in the 1980s, moving away from trade control to punishing the property owner who either gained property from or used property to facilitate criminal wrongdoing. What evolved out of this sea change is the notion that today property can, like an individual, be guilty of a crime.
Government Forfeiture of Property Un-American
This fundamentally un-American notion has inevitably led to civil forfeiture becoming uglier and increasingly corrupt. For example, modern civil forfeiture laws allow suspected “criminal” property to be seized and forfeited even if its owner is never charged with a crime.
Civil forfeiture has now so embedded itself in our criminal justice system that it is a mainstream, even primary in some states, law enforcement tool.
Because most states and the Federal Government allow law enforcement and related government agencies to keep 100 percent of the proceeds they get through forfeiture. That’s somewhere in the neighborhood of $500 million annually.
Laws Provide Incentive to Seize Property
Worse yet, a few states, like Texas, permit an incestuous relationship between prosecutors and law enforcement that allows them to share the forfeiture proceeds seized from both the wrongdoers found guilty of crime and the law-abiding who has never been convicted of a crime.
Each year, and increasingly so, law enforcement and prosecutors literally take hundreds of millions of dollars in homes, cars, and other property from owners whose guilt of criminal wrongdoing has never been proven beyond a reasonable doubt.
Texas Leads Nation in “Egregious Abuses”
According to the Institute for Justice, Texas leads the nation with roughly $48 million each year in forfeiture revenue.
In a 2013 New Yorker article, the police and district attorney in the small East Texas town of Tenaha (whose welcome sign proclaims, “A little town with BIG Potential”) collaborated to stop out-of-town drivers for trumped up reasons and forced them to signs waivers of their property rights so these law enforcement officials could take their cash or property. It was nothing short of criminal hijacking.
Civil Forfeiture Reform Legislation Opposed by Law Enforcement
Things got so bad in Texas—like the Tenaha affairs—that in 2015, some 13 bills were introduced in the state legislature designed to reform the state’s civil forfeiture statute. The blowback from state and local law enforcement was so immediate and so intense that all the bills died without gaining any traction.
The Texas Legislature once again revisited civil forfeiture reform this year, and as expected, these reform efforts were rigorously opposed by state and local law enforcement officials.
This time around, the reform opponents gained support from University of Texas Law Professor Susan Klein who proclaimed that civil forfeiture laws are beneficial.
“Repealing civil forfeiture would be a mistake,” Klein said. “Drug dealers tend to give their property to spouses, or business partners or other people. Getting a conviction against a drug dealer doesn’t necessarily help.”
And this revisiting of the civil forfeiture reform issue also drew the attention and stiff opposition from district attorney offices around the state that want to preserve this primary source of funding for law enforcement departments, including their share of the rip-offs.
And therein lays the root of the problem. During the decade between 1995 and 2015, Texas cops seized $486 million. That is a lot of free money.
Texas law enforcement, including district attorneys, has a vested interest in keeping this “dirty money” flowing into their coffers that allows them to afford a lot of luxuries their state budgets don’t authorize.
Civil forfeiture reform once again died on the vine in the Texas legislature in 2017.
Justice Thomas Proclaims Forfeiture Laws Lead to Egregious, Well-Chronicled Abuses
But in a little noticed opinion this past March, the U.S. Supreme Court refused to hear a Texas civil forfeiture case. Justice Clarence Thomas, however, issued a blistering concurring opinion against what he called a “system—where police can seize property with limited judicial oversight and retain it for their own use—[that] has led to egregious and well-chronicled abuses.”
Justice Thomas specifically pointed to the Tenaha sordid affair to illustrate the abuses, adding:
“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings … Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
Civil forfeiture is an insidious, corrupt business—regardless of what Professor Klein says. A practice that allows seizure and forfeiture of property, without any finding of guilt against its owner, has no place in the American criminal justice system, especially in Texas where property rights have a long and storied history.