In the last few months, proponents of civil asset forfeiture reform have witnessed promising victories.
On one front, the State of North Dakota scored a solid victory against civil asset forfeiture when Gov. Doug Burgum signed House Bill 1286into law. This measure puts North Dakota on the right path to restricting law enforcement agencies’ power to take people’s property once they have been arrested, and lets them keep what police have seized even when no crime can be proven.
The Supreme Court case Timbs v. Indiana established that the Eighth Amendment’s ban on excessive fines is also applicable to the states. This Supreme Court case is one of the more significant rulings at the federal level that has nominally hacked away at certain aspects of state-sponsored seizure schemes.
What is Civil Asset Forfeiture?
Civil asset forfeiture refers to the practice of law enforcement seizing assets, which may include automobiles, cash, and real estate, from citizens just based on the suspicion that the person was involved in criminal activity using those assets. Due process nor a court conviction is necessary for this to occur. Civil asset forfeiture has become a lucrative strategy for law enforcement agencies across the country to collect much-needed revenue. In 2014 alone, law enforcement agencies seized $4.5 billion in assets.
Unlike conventional forms of taxation, civil asset forfeiture allows municipal governments to collect revenue without having to directly raise taxes. Taxpayers already have to shoulder the burden of paying local, state, and federal taxes. So, it makes sense why they would be reluctant to support other forms of tax hikes.
In turn, local governments have to get creative with their money-grabbing schemes. Civil asset forfeiture happens to be the savior of many a cash-strapped municipality looking for another means of revenue collection. Indeed, civil asset forfeiture is part of the all-inclusive package of government overreach the Drug War has subjected the American populace to. Undermining civil asset forfeiture is part of the multi-pronged approach to ending the Drug War and bringing some sanity to modern-day law enforcement policies.
A State-by-State Approach Is the Ideal Strategy for Defeating Civil Asset Forfeiture
The best approach to phasing out civil asset forfeiture will likely come at the state level, and Tate Fegley has noted only limited help is likely to come from the courts. Although the Supreme Court’s decision in Indiana v. Timbs potentially provided some limited relief for victims, there’s simply a higher ceiling for political change at the state level rather than the federal level. Jim Bovard notes that “Court decisions do occasionally throw a penalty flag on government abuses but the Justices are akin to a football referee that notices only every tenth clip or roughing of the quarterback.” However, when the rubber meets the road, “the Court has consistently ruled that government officials are personally immune regardless of how they abuse private citizens.”
Activists should be cautious to think that the federal government will save us from abuses that it originally initiated. These kinds of positive decisions are more the exception rather than the rule. Litigation is also a time- and resource-consuming endeavor. Money and time spent on trying to get a case heard could possibly be allocated toward cheaper and more time efficient battles at the state and local level. Not to mention the Supreme Court has a tendency of not hearing important cases that could reverse significant government encroachments. This was most evident when the Supreme Court turned away a case that challenged federal regulation of firearms suppressors. Given how popular civil asset forfeiture is among the DC crowd, future cases that could actually do serious damage to this practice will likely meet similar fates. More often than not, the juice is simply not worth the squeeze when dealing with the Courts.
As corrupt as some municipalities and state legislatures can be, it is wishful thinking to believe five people sitting on the bench could decide what is right for a nation of nearly roughly 325 million people. In another article, Ryan McMaken notes how distant the Supreme Court has become:
Even worse, many of the justices haven’t had a real job in decades and have no idea how reality actually works. It’s unlikely that the older members of the Court could even use Google to find a phone number on the internet, let alone understand the complexities of how modern people run their businesses, raise their families, or function in everyday life. The Court is largely the domain of geriatrics who are paid generously to make complex judgments about a world they rarely engage and can scarcely understand.
To expect such a detached institution to significantly rollback policies like civil asset forfeiture and other local issues that are in vogue is the height of wishful thinking. Pressure will ultimately have to come from below.
The Path Toward Local Reform Won’t be a Walk in the Park
Indeed, the local road is no cakewalk either. One of North Dakota’s leading champions for civil asset forfeiture reform, State Representative Rick Becker, was disappointed that the bill he originally supported was watered down in certain aspects concerning exceptions to conviction requirements and a reporting component that did not “go far enough.” Nevertheless, HB 1286 is a step in the right direction. Becker also hinted at putting certain civil asset forfeiture reforms on the ballot in 2020 in order to correct some of the perceived flaws of HB 1286. Referenda are one of many useful tools to challenge government abuse at the local level.
However, other states such as Arizona, Nebraska, and New Mexico passed civil asset forfeiture reforms of their own in recent years, thus demonstrating that this is no isolated movement. The road to civil asset forfeiture reform will not be easy, just like many other local fights. But it is work that must be done.