Illinois House Joint Resolution 19 calls for an Article V
Convention of States
to limit the scope, jurisdiction, and spending of the federal government
How the Federal Government Perpetuates Injustice: Civil Asset Forfeiture [back to Injustice Menu]
Civil asset forfeiture is a practice in which law enforcement officials may seize a person's property based on the mere suspicion that the property is somehow connected to criminal activity.
Civil Asset Forfeiture is a useful case study in the separation of powers, one of the bedrock principles of our constitutional republic. In a typical civil asset forfeiture case, a person is pulled over for a minor infraction, such as a broken tail light. The law enforcement officer will ask for permission to search the car. Unafraid because they haven’t done anything wrong, the subject gives consent. Law enforcement then has the authority to seize anything they find during that search based on the flimsy excuse that said property may have been connected to some kind of criminal activity…even if the subject isn’t being arrested.
Because the person is never charged with a crime, they don’t get their day in court. Instead, they must enter a bureaucratic maze in which the onus is on them to prove their innocence, rather than on the government to prove guilt. Frequently it costs more to hire the needed professionals to get the property back than it was worth in the first place; and often, instead of returning it, a “settlement” is reached in which the victim doesn’t recover all that was taken, and is coerced into signing a non-disclosure agreement that prohibits them from publicizing the wrongdoing or taking any further action against the agency. Perhaps most the most horrifying aspect of forfeiture is that parents have been threatened with having their children removed from their custody and thrown into the child welfare system.
Civil asset forfeiture has been used since ancient times. It was the British use of civil asset forfeiture, then called “writs of assistance,” that prompted the inclusion of the 4th Amendment in our Bill of Rights. Here in the United States, it was used for a brief period as a means to collect taxes or customs duties on the high seas, but was mothballed for about a century. It was resurrected during the Prohibition Era to fight organized crime, and again in the 1980s in the “war on drugs.” Regardless of the good intentions used to justify it, civil asset forfeiture is a blatant violation of our 4th Amendment protections against unreasonable search and seizure; and because the victim is never charged with a crime, it also skirts the 6th Amendment, which guarantees our right to a speedy public trial before a jury of our peers. It disproportionately victimizes members of low-income and minority communities, who are more likely to do business in cash (according to the Washington Post, the average seizure is less than $500), and less likely to have access to the professional help needed to fight this abuse.
Civil asset forfeiture is just one of many examples of why the separation of powers is such an important feature in the design of our government. The drafters of the Constitution understood the corruption that occurs when the people who write the regulations are the same people enforcing and adjudicating them. The people who decide whether you get your stuff back or not aren’t just the people who took it from you, but worse, are the people who wrote the regulations that allowed them to take it in the first place!
Our Constitution stipulates that the only institution that has the power to make federal law is Congress: a group of men and women who must face We the People on a regular and frequent basis, so that we have the opportunity to weigh in on the laws they make for us to live under. But Congress has skirted this accountability by passing vague legislation and then handing off the responsibility to nail down the particulars to executive agencies: unelected career bureaucrats who seldom experience any consequences for wrongdoing, and frequently have very little real-world experience in the areas they regulate. This allows politicians to escape accountability by taking credit or shifting blame as is politically expedient; and creates the situation in which the people legitimately tasked with enforcing the law have also been conferred with the authority to write it. As a result, they can name themselves adjudicator of the law, as well. Some states have attempted to step in and protect their residents from this kind of abuse, but the Department of Justice has circumvented these measures with a program called "Equitable Sharing." The IRS is also actively involved in seizing Americans' assets without due process.
The Supreme Court, by its own admission, has abandoned its responsibility to check the the legislative and executive branches; choosing instead to become an enabler in the natural quest for power our Constitution was intended to blunt. In the 1992 New York v. United States, 505, the Justices openly stated that they and their predecessors had been engaged in empowering the federal government to undertake activities that “would have been unimaginable to the Framers.” In over a dozen opinions, they have further maintained that the only check on their power is their own “good judgement.” Apparently, the checks and balances implemented through the creation of the executive and legislative branches no longer apply to them.
The abuse of innocent Americans through the practice of civil asset forfeiture has been underway for decades. If the Executive Branch were going to clean up its act, it would have done so by now. If Congress had any interest in using legislative means to rein in the misconduct of unelected officials, they would have acted long ago. And the Supreme Court has had numerous opportunities to step in and defend innocent Americans against this obvious trammeling of the Bill of Rights, but has opted instead to nibble around the edges by issuing opinions about proportionality and double jeopardy.
It is time to require Congress to return to passing laws and regulations in their final form. Many options exist to reform the judiciary, including term limits and involving the states in the appointment of federal judges. The states must step in where the federal government has lost its way, and use the Constitutional authority invested in them in Article V.
Civil asset forfeiture causes disproportionate harm to members of low-income and minority communities, because these people are more likely to conduct their business with cash and less likely to be able to afford the representation they need to recover their property. According to the Washington Post, the average forfeiture is less than $500; but to a struggling family, the loss of an important asset like a car, even one with very little cash value, can be catastrophic.
