Other Voices

Here’s a path toward fixing problems of civil asset forfeiture

Cash seized by a law enforcement task force in Parker County in 2014.
Cash seized by a law enforcement task force in Parker County in 2014.

Does anyone think it’s fair for the government to take your property when you’re not convicted of a crime?

Civil asset forfeiture allows law enforcement to seize an individual’s property (including cash), often without charging that person with a crime.

It’s then up to the individual to prove the item’s innocence, often at significant personal expense.

Last year, the government used civil forfeiture to take from individuals more assets than were taken in all burglaries nationwide.

As the Institute for Justice and others have documented, because the assets often go straight into law enforcement’s budgets, this creates an incentive for police.

Some states, notably New Mexico, have rightly intervened to limit this practice by reforming the forfeiture process and where those funds go.

Other reforms have been considered in Florida, New Hampshire, Virginia, Oklahoma and elsewhere, with mixed success.

But those state efforts have been thwarted by federal “equitable sharing” programs that allow seizures under joint federal-local law enforcement and pass the proceeds back to the state.

That federal loophole was temporarily shut by Congress in December when it transferred more than $1 billion from the equitable sharing fund to the general treasury in the budget reconciliation law.

With insufficient funds to “share,” the Justice Department suspended the program. But that suspension has been undone and the transfers will resume.

If our rights can be unreasonably curtailed, society should have a broader conversation about the role of law enforcement and what should (and shouldn’t) be criminalized.

It’s often said that ignorance of the law is no excuse. But rampant over-criminalization has added so many laws to the statute books that it is impossible for any one person to be aware and comply.

The growth of federal criminal law is startling. In 1970 there were 1,582 statute sections of federal criminal law and an estimated 10,000 federal regulations punishable by criminal penalties.

Today there are more than 4,400 federal criminal laws and more than 300,000 criminal regulations.

Moreover, state criminal law adds thousands more to that count.

Often, those laws are overbroad or vague. It mostly boils down to whether a prosecutor, or public opinion, wants to “get you” or not.

This level of over-criminalization radically undermines the very promise of American justice.

It’s a sad fact that we have become a nation of accidental criminals.

Traditionally, most laws required both a bad action and intent, and ‘a guilty mind’ called mens rea.

But over time, as we have added more and more laws to the statute books, legislators have frequently failed to require that intent as a condition of the crime.

It’s like whether grabbing the wrong coat when leaving a party is an honest mistake or criminal theft.

Reexamining every one of those laws would be both logistically and politically difficult.

In the meantime, many would suggest a simple solution. Some states and federal lawmakers have begun working on default mens rea safeguards, whereby intent is a necessary element of a crime.

As a former federal prosecutor in the Northern District of Texas, and as one who helped establish the national forfeiture program, I see the unintended consequences of my actions. It’s time to fix forfeiture.

Brad Cates is an attorney in private practice in Las Cruces, N.M. He was director of the Justice Department’s Asset Forfeiture Office from 1985 to 1989.