The low bar for seizing assets
Civil forfeiture allows law enforcement to seize assets like cash, cars, and even homes that they suspect are connected to criminal activity. But unlike criminal law, the legal standards are much lower for the government to take your property. There doesn’t even need to be an actual conviction or sometimes even criminal charges filed.
The key difference is the burden of proof. In criminal cases, prosecutors have to prove “beyond a reasonable doubt” that someone is guilty. But in civil forfeiture cases, the government only needs to show “preponderance of the evidence,” which is a much lower bar. Basically they just need to show it’s more likely than not that the assets are tied to illegal activity 1.
So if the cops find a stash of cash and some drugs in your car, they can argue it’s more likely than not that the money came from drug dealing. Even if you claim the cash is legit – like from your business or savings – they can still try to confiscate it through civil forfeiture since the burden of proof is so low.
Criticisms of the low standard
Civil liberties groups argue this low standard of proof is unfair and deprives people of property without due process. It can lead to abuses where law enforcement seizes valuable assets based on flimsy evidence. And it often impacts poor and minority communities the most who lack resources to fight back2.
The practice has faced growing opposition in recent years. There are concerns that police and prosecutors rely too heavily on civil forfeiture to fund their budgets, creating a profit motive. Some states have passed reforms to raise the burden of proof or add protections for property owners.
But federal law still only requires the “preponderance of evidence” standard for federal forfeitures. And local agencies can get around stricter state laws by partnering with federal agencies through a process called “equitable sharing”3.
Shifting the burden of proof to owners
Another issue is that the burden of proof often gets flipped onto property owners once assets are seized through civil forfeiture. At that point, it’s up to the owners to prove the property is “innocent” and not connected to any alleged criminal conduct 4
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Again, this flips the script from how criminal law works – where the government has the burden to prove someone’s guilt. With civil forfeiture, owners need to prove their own “innocence” to get their property back. And this can be difficult when the government has already taken possession of the assets in question.
Defense lawyers argue this shifting burden violates the Fifth Amendment right to due process. It assumes property is “guilty” unless owners can prove otherwise. And it gives law enforcement incentive to seize assets by exploiting the lower standards.
Attempts at reform
Some states have passed reforms to fix these issues. For example, about 15 states now require “clear and convincing evidence” instead of just “preponderance” to forfeit assets 5.
That makes it tougher for the government to seize property in the first place.
A few states have also shifted the burden of proof back to the government instead of owners. Now prosecutors have to show assets are connected to criminal activity, instead of owners proving their innocence.
And some states have eliminated civil forfeiture altogether, requiring a criminal conviction before assets can be forfeited. This essentially raises the standard to “beyond reasonable doubt.”
But again reforms have been uneven across states. Efforts to change federal law have stalled in Congress. So the basic problem remains – law enforcement can often seize assets based on fairly loose standards compared to criminal law.
Disproportionate impact
While civil forfeiture affects people across the economic spectrum, it tends to hit poor and minority communities the hardest. That’s because they’re less able to fight back when assets are seized. Hiring lawyers and going to court to challenge forfeitures can be expensive and difficult.
For example, research shows civil forfeiture is used more often in minority neighborhoods, even controlling for crime rates. Up to 80-90% of people who get their assets seized are never even charged with a crime. And the median value of assets seized tends to be low – around $1,000 or less – suggesting small property owners are most impacted.
Given the reduced protections and standards, critics argue civil forfeiture carries a high risk of abuse and injustice that undermines constitutional rights. The ACLU calls the practice “fundamentally unfair.” While supporters say it’s an important tool to fight crime by targeting resources, many feel the tradeoffs are too high and standards should be elevated.
The need for more protections
Ultimately, the low burden of proof and reduced due process standards in civil forfeiture proceedings mean there is less protection for property owners against government overreach.
In a legal system that values “innocent until proven guilty,” civil forfeiture can seem out of step. Seizing assets based on a “preponderance of evidence” is a far cry from the criminal standard of “beyond reasonable doubt.”
And shifting the burden to owners to prove assets are “innocent” flips the presumption of innocence on its head. While reforms have helped raise standards in some states, the practice remains concerning to many legal experts and civil liberties advocates.
More protections and higher evidentiary standards could help ensure civil forfeiture targets truly illicit activity, while preventing abuse and upholding individual rights. But achieving balance remains an ongoing struggle in the legal system.