by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter
What do the cases United States v. Approximately 64,695 Pounds of Shark Fins and State of Texas v. One 2004 Chevrolet Silverado have in common? They both involve the practice of civil forfeiture - the seizure of property that law enforcement officials suspect of being involved in criminal activity. While in criminal forfeiture the government has to prove a defendant’s guilt beyond a reasonable doubt in order to seize property tied to the criminal activity, that’s not the case in civil forfeiture proceedings. In these actions, the property itself is charged with a crime – hence the strange case titles – and it is not necessary for the government to demonstrate that a property owner is guilty of any misconduct. In fact, civil forfeiture often takes place even when criminal charges are never filed.
As described in an extensive study done by the Institute for Justice, civil forfeiture laws at the federal level and in 42 states perversely incentivize forfeiture actions. The money is often used to pay salaries and purchase equipment, providing an incentive for law enforcement officials to increase the number of seizures. In Philadelphia alone, officials seized approximately $64 million dollars in assets in a 10-year period, and the Philadelphia District Attorney’s office used $25 million of that to pay salaries. A class action lawsuit has been filed challenging Philadelphia’s appetite for civil forfeiture proceedings.
The practice is getting the scrutiny and criticism it deserves. In a comprehensive investigation, The Washington Post reported last year that police have seized almost $2.5 billion from motorists and others without search warrants or criminal indictments since September 11, 2001. The New Yorker also examined the out of control practice, as did one late night comedy show. In addition, the Department of Justice report on the Ferguson police department highlighted the role of law enforcement as a municipal revenue generator, noting that the city’s law enforcement activity “shaped by the City’s pressure to raise revenue, has resulted in a pattern and practice of constitutional violations.”