This commentary, written by Michael Haugen and Hal Stratton, originally appeared in the Washington Examiner on July 8, 2015.
Among of the most vociferously defended freedoms to emerge from the Founding era were those related to property rights. One of the most important ideas to come out of that period in our history is that government has a role in protecting those rights.
In 1774, the Continental Congress stated that "by the immutable laws of nature" the people "are entitled to … property," and the Massachusetts Constitution in 1780 declared that man has certain "essential and inalienable" rights, among which is the right of "acquiring, possessing, and protecting property." James Madison's Federalist 10 explains that there is a "diversity in the faculties of men, from which the rights of property originate …The protection of these faculties is the first object of government."
To the Founders, depriving an individual of such an "immutable" and "essential" right would have been a grave injustice, and as such, this leaves little in the way of imagination as to how they would view modern government's practice of civil asset forfeiture.
Civil asset forfeiture is an instrument of government whereby property suspected of being involved in a crime can be seized by law enforcement. "Suspected" is the key word, as the burden of proof under a civil asset forfeiture is often much lower than in a traditional criminal case, which requires proof "beyond a reasonable doubt." In a civil forfeiture, the government most often takes ownership of property on a simple preponderance of evidence, meaning the property was more likely than not involved in a crime. What's more, the onus falls on the citizen to prove the property's innocence — yes, the property itself is charged with the crime under civil asset forfeiture — not on government to prove the criminal guilt of the individual.
As with many government programs, civil asset forfeiture was well intentioned: It seeks to make the proceeds of criminal behavior available to law enforcement to combat future criminal behavior. Unfortunately, "well-intentioned" has given way to an increasingly abused program whereby innocent people are becoming ensnared and losing money and other property that has never been proven to be involved in a crime. Making matters worse, law enforcement agencies generally get to keep uncontested proceeds of a forfeiture action, creating a perverse incentive to partake of the practice often.
Take the recent case of Joseph Rivers. During a trip to Los Angeles, where Rivers hoped to fulfill a life-long dream in the music industry, a DEA agent who boarded Rivers' Amtrak train in Albuquerque, New Mexico, asked various passengers, including Rivers, the nature of their trip. Stating he was headed to L.A. to make a music video, Rivers consented to the agent's request to search his belongings, during which, the agent found $16,000 in seed money that Rivers had been saving for the venture, still in a bank envelope.
Not believing Rivers' story, the agent confiscated the money on the suspicion that it was tied to the drug trade — despite not finding any drugs, guns or other paraphernalia. No charges were levied, but the money was taken.
Many other similar stories exist across the country: A Nevada driver who lost $50,000 in casino winnings during a traffic stop (only returned after he subsequently sued). Dozens of drivers at a party had vehicles impounded because their building allegedly didn't have a license (the vehicles were returned — after $900 in fees were collected per person). A New Jersey man lost $22,000 during a traffic stop in Tennessee, on suspicion that it was for drugs (it was actually to purchase a new car, for which the driver had pending eBay bids). In every case, the basic facts are constant: Property is seized by government without charges being filed, or guilt established.
Currently, civil asset forfeiture practices are a gross violation of long-prized, zealously guarded civil rights, including the presumption of innocence and due process. Our Constitution is meant to be a shield against this sort of arbitrary and capricious over-extension of government power, but to this point, most states — and the federal government — have very lackluster protections in place.
It's time to put a rein on it.