Civil Forfeiture

Brennan Murphy

Justice101 Intern

​Hello Street Law Advocates,
 
A person’s property receives a lot of protection in the United States. Indeed, the Fifth Amendment to the United States Constitution states that a person may not “be deprived of life, liberty, or property, without due process of law . . . .”[1] With such a foundational right enshrined in the Constitution, one may be led to think that a person would need to be convicted of some crime in court to justify their property being taken. Some may be surprised to learn then that there exists a mechanism in the United States to separate a person from the legal ownership of their property based on the mere suspicion that the person had used the property to aid in the commission of a crime — no finding of actual guilt required.[2] Through this process, police may seize a person’s property without a guilty verdict against the “defendant” and the police may keep the property until the person proves themselves innocent of the suspected crime, turning the concept of “innocent until proven guilty” on its head.[3]

This mechanism is known as Civil Asset Forfeiture or more colloquially as “civil forfeiture.” Civil forfeiture is a favored tool of law enforcement agencies because it not only allows law enforcement to seize the property of individuals who have yet to be found guilty of a crime, but also because law enforcement gets to keep a large portion of the proceeds gained through the eventual sale of the seized property. 

In Iowa, for example, law enforcement may receive up to ninety percent of the value of forfeited property as a kickback for their participation in the forfeiture.[4] These forfeiture actions are big business for law enforcement, having brought in reportedly $68.8 billion nationally since 2000.[5] Perceptive readers may notice a potentially alarming consideration with this program. If law enforcement is eligible to receive a portion of the proceeds from a forfeiture, are law enforcement not incentivized to engage in as many forfeitures as possible?

Various public interest and civil rights groups have questioned the legality, fairness, and effectiveness of civil forfeiture for particularly this reason. In their view, civil asset forfeiture is an unjust system that encourages law enforcement to take property from citizens to bolster the budgets of law enforcement agencies. Even worse, those who have their property taken from them are forced to expend their own money to get their property back even though they have not been convicted of any crime. 

Many states have taken some action to curtail this system and reduce the effect it has on their own citizens. For instance, Iowa attempted a major reform effort of civil forfeiture in 2017.[6] Iowa’s forfeiture reform included added protection for property owners, including a requirement for conviction if the seized property is worth less than $5,000 and a higher burden of proof for the state to succeed in forfeiting property.[7] While these reforms may be effective in a vacuum, law enforcement often use a federal loophole to get around state reforms and continue to engage in forfeiture in the very same way they had before the state enacted its reforms.[8] This loophole is known as the federal equitable sharing program, and it allows law enforcement to seize property under state law but request that the federal government undertake the forfeiture under federal law that is much less restrictive than state law.[9] Through this loophole, law enforcement evade state restrictions on the use of civil forfeiture, and continue to receive up to eighty percent of the value of the forfeited property.[10] Iowa failed to address this loophole in its 2017 reform effort, thus compromising the effectiveness of the whole reform effort.

Iowa has signaled its intention to reform civil forfeiture, a practice that is widely regarded as unjust and ineffective.[11] Until the state closes this federal loophole by restricting law enforcement from transferring seized property to the federal government for forfeiture, it is unlikely that law enforcement in Iowa will be constrained by state law. Failing to close the loophole leaves open an avenue for law enforcement to avoid state law. As law enforcement have a financial stake in forfeiture, they are not only empowered to avoid state laws that would restrict this financial gain, but they are incentivized to do so.


[1] U.S. Const. amend. V.
[2] Ending Civil Asset Forfeiture Abuse, Stand Together Tr., https://standtogether.org/newsroom/constitutionally-limited-government/civil-asset-forfeiture-statistics-abuse-stand-together-trust.
[3] Makena Bauss, Innocent Until Proven Guilty? Not When It Comes to Your Stuff, Am. C.L. Union Me. (Dec. 5, 2018, 7:15 PM), https://www.aclumaine.org/en/news/innocent-until-proven-guilty-not-when-it-comes-your-stuff.
[4] Iowa Code § 809A.17.
[5] J. Justin Wilson, New Report Finds Civil Forfeiture Rakes in Billions Each Year, Does Not Fight Crime, Inst. For Just. (Dec. 15, 2020), https://ij.org/press-release/new-report-finds-civil-forfeiture-rakes-in-billions-each-year-does-not-fight-crime-2.
[6] Ryan Summers, Iowa Places Limits on Civil Asset Forfeiture Practices, Am. Legis. Exch. Council (Apr. 24, 2017), https://alec.org/article/iowa-places-limits-on-civil-asset-forfeiture-practices.
[7] Mike Maharrey, New Iowa Law Reforms Asset Forfeiture, But Leaves Federal Loophole Wide Open, Tenth Amend. Ctr. (May 20, 2017), https://blog.tenthamendmentcenter.com/2017/05/new-iowa-law-reforms-asset-forfeiture-but-leaves-federal-loophole-wide-open.
[8] Id.
[9] Lisa Knepper, Jennifer McDonald, Kathy Sanchez & Elyse Smith Pohl, Policing for Profit: The Abuse of Civil Asset Forfeiture 48 (Inst. For. Just. ed., 3rd ed. 2020)
[10] Id.
[11] Nick Sibilla, Poll: Most Americans Want Congress to Abolish Civil Forfeiture, FORBES (Nov. 16, 2020, 10:34 AM), https://www.forbes.com/sites/nicksibilla/2020/11/12/poll-most-americans-want-to-defund-civil-forfeiture.