Mike Fox
Carrying large amounts of cash is not a crime in the United States. But tell that to Stephen Lara, a Marine Corps combat veteran who was stopped by the Nevada Highway Patrol for allegedly following a truck too closely. A trooper interrogated Lara, who acknowledged having $87,000 in cash in the trunk of his car. Lara was never arrested or charged with a crime. But that did not stop the Nevada Highway Patrol from seizing his life savings and handing it over to the US Drug Enforcement Administration (DEA).
Civil forfeiture is the practice by which the government seizes people’s money or property supported only by probable cause, a bare-bones suspicion of wrongdoing—without securing a criminal conviction or even filing charges. Upon seizing property, the government initiates a civil suit—not against the owner but against the property itself—and owners must navigate a costly and convoluted process to get their property back.
Equitable sharing is a program administered by the Department of Justice under which state and local law enforcement agencies can share their forfeiture proceeds with federal agencies who then pursue forfeiture under federal law. It is common for state and local law enforcement agencies to use the equitable sharing program to sidestep state laws that seek to limit civil forfeiture. By handing Lara’s money over to the DEA, the Nevada Highway Patrol would see 80 percent returned to them. In exchange for “sharing” the remaining 20 percent with the DEA, the Nevada Highway Patrol can circumvent the state’s comparatively more robust legal protections regarding civil forfeiture, including Nevada’s requirement that the government meet a higher standard of proof. Nevada law requires prosecutors to provide clear and convincing evidence connecting seized property to a forfeitable crime, meaning it must be highly likely that seized property is connected to a crime. On the contrary, the federal standard is a mere preponderance of the evidence, a more deferential evidentiary standard, meaning it is more likely than not that seized property is connected to a crime.
Represented by the Institute for Justice, Lara challenged the forfeiture and immediately got his money back after the case garnered significant media attention. Unfortunately, most victims of civil forfeiture are not able to retain effective counsel and find the process so cumbersome that they end up hoisting the white flag in defeat.
Civil forfeiture traces its roots back to 16th-century England and beyond, where its antecedent was used to seize ships and uncustomed goods from foreign smugglers. Congress likewise initially authorized civil forfeiture to go after pirates and smugglers. But it was not until the war on drugs that civil forfeiture became widely used by law enforcement. While proponents claim civil forfeiture is an effective tool for going after drug kingpins, the data tell a different story. The Institute for Justice found that in Philadelphia between 2012 and 2018, the median cash forfeiture was a paltry $178 and that civil forfeiture was disproportionately used against poor people of color with little recourse to fight back.
The Fifth Amendment Integrity Restoration (FAIR) Act sponsored by Sen. Rand Paul (R‑KY) and Sen. Cory Booker (D‑NJ) is an effort to reign in these abuses. The FAIR Act would
eliminate the equitable sharing program to guarantee that state efforts to protect the rights of their citizens are not defeated by federal overreach;
remove financial motivations for seizures by redirecting all forfeiture proceeds from the Justice Department’s Assets Forfeiture Fund to the Treasury’s General Fund;
raise the evidentiary standard from a preponderance of the evidence (more likely than not) to the less deferential clear and convincing (highly probable) evidentiary standard; and
make it easier to challenge forfeitures by ensuring access to counsel for indigent property owners and requiring judicial oversight.
Civil forfeiture is both easy to initiate and difficult to challenge. The ability of the government to strip a person of their property by simply alleging it may have been connected with a crime in some way eviscerates property rights and runs afoul of the fundamental concept of due process as enumerated in both the Fifth and Fourteenth Amendments. Americans should be able to rest assured knowing that their government will not be able to steal their life savings on a whim.