In its most recent report, "Policing for Profit," the Institute for Justice ("IJ") details exactly how we have turned Lady Justice into a cash cow by allowing law enforcement and prosecutors to snatch "...hundreds of millions in cash, cars, homes and other property - regardless of the owner's guilt or innocence."
While forfeiture is hardly a new proceeding, its use has clearly become overuse in the last 30 years if the IJ's numbers are any indication. Annual deposits from forfeiture reached $4.5 billion, 4,667 percent increase in 2014, a 4667 percent increase from 1986.
Civil forfeiture accounts for 87% of all government seizure, according to the IJ's analysis which is a much more disturbing reality than the amount of money and property taken from people. If criminal forfeiture accounts for only 13% of all government seizure of property, then, by law, almost 90% of forfeiture proceeds come from situations where citizens may have done nothing wrong. Through civil forfeiture schemes in the states and the federal government, we've legalized plunder.
The way we have legalized it, the report details, is by using evidentiary standards employed in courtrooms to determine how much evidence is needed to keep someone's property. Since only suspicion of whether the property was somehow gained from or involved in a crime allows it to be taken - which is bad enough - the standard for the government's keeping the property should be higher. Although often it's not.
As the IJ's report details, state by state, only two states - Nebraska and North Carolina - require proof beyond a reasonable doubt in order to keep seized property, meaning the person who owns the property must be found guilty of the crime for which it was seized in order for the state to keep the goods.
Forty-six states use some form of the "clear and convincing" or "preponderance of the evidence" standards which means that the owner need not be found guilty of a crime for the property to be seized. New Hampshire has an interesting and worthless protection: no property may be kept by the state if the person is found not guilty in a criminal proceeding. While it may seem fair, since so many of civil forfeiture victims are never even charged, this rule provides no safeguarding against arbitrary forfeiture; you can receive a verdict, a factual finding of 'not guilty' when you've been charged and tried.
Sadly and shockingly, two states, Massachusetts and North Dakota, both use the "probable cause" standard of evidence in order to determine if the state can retain seized property. That means innocence is as likely as guilt, yet the state still gets to keep the property. The only chance that a citizen has to keep what is rightfully his is to wage a lengthy and expensive legal battle against the government.
And, if all of this wasn't bad enough, the IJ's report exposes another level of perfidy in our forfeiture laws: equitable sharing. Reminiscent of organized crime structures, a program of 'equitable sharing' allows local and state agencies to kick up some of their proceeds to the federal government with the hopes that they will, in the end, get a share in the collective forfeiture pie.
Except even the feds can't share like they're supposed to do. Last month, the New York Times reported that the Department of Justice has placed the sharing program on hold because Congress took $1.2 billion dollars from the asset forfeiture program to cover budget shortfalls. It's worse than taxation without representation; it's taxation without any process, never mind due process, at all.
At first blush, it may seem like civil forfeiture is different than the usual methods of justice: targeting poor people who have nothing and placing them in jail. As hard as state and federal governments may try, you can't take nothing from nothing so indigent populations are impervious to forfeiture schemes.
For these programs to exist, civil forfeiture statutes must necessarily target people with some assets. However, the cost of the legal duels with the government bankrupt victims who dare to stand up to the government. In the end, everyone is poor except the government.
The biggest revelation of the Institute for Justice's "Policing for Profit" report is that our justice system is no longer about public safety and stopping people who break the law. The United States has allowed justice to careen so out of control that it's now grabbing up the innocent, not even convicting them, and bankrupting them for the sake of government revenue.
It's just no way to treat a Lady.