Police Can Just Take Your Money, Car and Other Property — and Good Luck Getting It Back
Alda Gentile was driving back home to New York from Florida, after having viewed condos with her son and grandson ahead of a potential move. She had $11,000 in cash with her, which she brought in order to make a deposit on her new place. As she drove through Georgia, she was stopped for speeding, and upon hearing that she was carrying such a large sum of cash (which is legal, by the way), state troopers questioned her on the side of the road for a total of six hours. In the end she was sent on her way—without the cash, which the officers kept.
Gentile’s case is an extreme example, but such occurrences happen on a smaller, broader scale across the country every year. Civil asset forfeiture is one of those arcane statutes you never hear about until it screws you. It’s a legal fiction spun up hundreds of years ago to give the state the power to convict a person’s property of a crime, or at least, implicate its involvement in the committing of a crime. When that happened, the property was to be legally seized by the state.
That made sense in the 18th century, when the government invoked the law to legally claim loot left behind by pirates who escaped into the blue horizon of the Atlantic. Today, however, the police are the ones who confiscate property, and they’re usually the ones who end up keeping it. The most ridiculous thing about civil asset forfeiture’s modern form is that police use it to confiscate a person’s things even if that person is never convicted of, or even charged with, a crime.
The statute is portrayed by law enforcement as a way of crippling the narcotics trade by letting agencies keep pieces of the infrastructure of large-scale drug operations — and sometimes, civil asset forfeiture does that. But more often than not, it’s used by law enforcement to take from ordinary people who’ve committed no crime. The results are precincts made richer by hundreds of thousands or even millions of dollars, and insidious incentives for police to apprehend people not in the interest of public welfare but out of something like the profit motive.
No matter one’s political inclinations, most can agree that civil asset forfeiture is basically practiced unfairly. Its fiercest and most vocal opponents are libertarians and other limited government advocates, who string it up as a sinister example of a tyrannical state voraciously plundering its people. This author is less conspiratorial; civil asset forfeiture is simply a dumb, archaic policy that’s still around because not enough people have called for its end. Dick Carpenter, director of strategic research at the Institute for Justice, explains that “special interest theory” may explain civil asset forfeitures’ staying power. The idea is that those who stand to benefit from forfeiture—law enforcement—are a concentrated interest, and those who don’t are a diffuse interest.
“Concentrated interest always has greater power than diffused interest,” he said. “The diffused interest is the public, you me everyone else, we don’t have power like the concentrated interest that organizes and lobbies on its own behalf.”
Civil asset forfeiture laws differ from state to state in three ways. First, they vary on how much of what local agencies seize they can keep—some places can keep up to 100 percent of what they seize, while in other states law enforcement can only keep a fraction. Second, proof of culpability required for forfeiture is much more stringent in certain states, while in others its quite low. Last is the difference in owner-burden to prove innocence: some states assume the owner of property is guilty when charged, making it much harder for the owner to retrieve forfeited property, while other states presume innocence, making the process of retrieving stuff easier.