The practice of civil asset forfeiture – whereby law enforcement can confiscate a person’s property or money on a suspicion of criminal activity, leaving it to the person to establish his or her innocence – may be on rocky terrain. If the skeptical questions of the Supreme Court justices in the recently argued case of Timbs v. Indiana are any indication, civil asset forfeiture may soon be subject to the constitutional prohibition on excessive fines, putting at least some limits on the practice. Some justices were apparently unmoved by the contention that law enforcement could seize a Land Rover for speeding by 5 miles-per hour.
Civil asset forfeiture is, in addition to flying in the face of the Fifth Amendment and its prohibition of taking of property without due process, bad law enforcement. The law enforcement agency typically keeps the assets. By effectively allowing for law-enforcement to self fund, civil asset forfeiture sets up all the wrong incentives. There’s every reason to chase dollars instead of bad guys.
Imagine an investigation into an international drug cartel has been underway for years when an intercepted phone call reveals that sizable monetary assets are on the move. It isn’t difficult to imagine the pressure to succumb to short-term thinking by making a bad law enforcement decision: seize the known asset rather than wait. The problem is that arresting lower level targets compromises an investigation. It’s hard to ask cash strapped agencies under continuous pressure to do more with less. The temptation to compromise a serious, long-term investigation should not exist. Law enforcement should be funded through the regular budgetary process.
Tennessee would be wise to start thinking proactively about a new approach to seizing criminal assets. Fortunately, it is not an all–or–nothing approach between civil asset forfeiture and criminals keeping drug proceeds. We have another well–established approach. It is called criminal asset forfeiture.
Criminal asset forfeiture produces the same ultimate result: divesting the criminal of illegal gains. The difference is that criminal asset forfeiture uses the regular criminal process, and assesses the forfeiture as a penalty. Under criminal asset forfeiture, the accused can either plead guilty or ask for a jury to make the determination. In other words, this is what we are already doing to anyone accused of a crime. As pointed out above, civil asset forfeiture allows for property to be seized without anyone being charged ever.
To be sure, criminal asset forfeiture is not as quick as civil asset forfeiture. Law enforcement must wait until the proceedings resolve. And now prosecutors must add and resolve an additional charge. But all this is a small price to pay for a restoration of the Fifth Amendment.
Now is as good of a time as any to start rethinking our approach to asset forfeiture.