Constitutional Law

Justin Amash Proposes To Eliminate Civil Asset Forfeiture

There is no justifiable reason to continue such an abused, ineffective, and (should be) unconstitutional practice. 

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There are certainly difficult questions in law, but the constitutionality of the practice of civil asset forfeiture should not be one of them. After all, the Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause” and the 14th Amendment confers this guarantee onto the states. Yet, the practice of civil asset forfeiture allows the government to seize property (including cash) from citizens without ever having to prove probable cause or that a crime has been committed. The reason we have this sad and abusive reality is that the Fourth Amendment’s plain language carries little weight in our nation’s courts. The result of asset forfeiture is that more than $68 billion has been taken from the American populace since 2000.

I could spend this entire essay relating to you the horror stories of asset forfeiture where innocent people have had their lives ruined. Moreover, the negative impact is not felt evenly by everyone but has been shown to disproportionately effect minorities. During the Obama administration modest proposals were implemented at the federal level in reforming asset forfeiture with many states going even farther to enact reforms in order to curb the abuse. But, as is so often the case, the once better-looking times only lasted until the man who willingly paints himself orange was elected president. In particular, once the “doughty bigot” Jefferson Beauregard Sessions became attorney general not only were the modest reforms at the federal level abandoned, but ol’ bigoted Beauregard ensured that promising state reforms could be bypassed through what’s called the adoption program.

As Radley Balko has explained, under the adoption program:

[A] local police department or prosecutor need only call the local branch of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Drug Enforcement Administration, or other federal law enforcement agency and ask them to join the case. Even minimal federal participation makes the investigation federal, which means the forfeiture policy will now be governed by federal law. The federal agency will then return a large percentage of the federal proceeds back to the local police agency.

To be blunt, the adoption program is a way for the federal government to ignore state reforms to asset forfeiture. If, for example, a state reformed its laws so that police could not seize cash unless they proved a crime was committed, well, then all an officer would have to do is call a fed, have them take the cash and wait around for the federal agent to give it back to the state.

And there is a perverse incentive for state police to utilize the federal adoption program, even if the seizure violates their own state laws, as asset forfeiture operates as a slush fund for police departments. Basically, the problems with asset forfeiture are legion, and the damage being done is pervasive. Enter Rep. Justin Amash of Michigan.

Amash has introduced the “Civil Asset Forfeiture Elimination Act,” and it is as glorious as it sounds. The bill would ban the forfeiture of “any property, real or personal, pursuant to a civil forfeiture proceeding, including a nonjudicial civil forfeiture proceeding.”

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The first thing that came into my head when reading this bill was why in the world the Democrats have not introduced this? Being they are the opposition party to the current president who has increased civil asset forfeiture and with the senate at stake in Georgia. Then again, Amash has a storied history of putting the Democrats to shame. Perhaps more importantly, and also more worrisome, incoming president Joe Biden does not have an ideal past when it comes to criminal justice issues. On the campaign trail, Biden did propose modest reforms, but on political gimmie criminal justice issues like legalization of cannabis, which is widely supported even in deep red states, Biden remains woefully behind.

The good news is this House of Representatives has shown itself capable of taking historic votes that could ultimately push drug warriors like Biden in the right direction. But will this Congress make a similar push when it comes to asset forfeiture and pass Amash’s bill? Only time will tell. What is certain is that asset forfeiture is an abused, ineffective, and (should be) unconstitutional practice. Passing Amash’s bill is all it would take for the horrors to end.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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