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How Asset Forfeiture Undermines Government’s Legitimacy

March 23, 2021

March 23, 2021
By Timothy Sandefur

Civil asset forfeiture—which allows law enforcement officers to seize people’s cash, cars, or other property by claiming it was involved with a crime—is often called “policing for profit,” because police officers and prosecutors can keep the proceeds of these confiscations—and are not required to prove that the owner actually committed a crime. Forfeiture is big business, too: Local, state, and federal officials seize more than $3 billion each year—an amount so large that many law enforcement agencies have become essentially dependent on this outside income. Rather than being funded with tax dollars, these agencies now derive a large portion of their budgets from money taken directly out of the pockets of citizens who are never convicted of, or even charged with, crimes.

The injustice of asset forfeiture has been a subject of debate for several years, but a Goldwater Institute policy paper released today, Predators, Not Protectors: How Asset Forfeiture Undermines the Legitimacy of Government, looks at how forfeiture doesn’t just violate the constitutional rights of due process, but also contradicts the more basic principles of government legitimacy.

Since ancient times, political philosophers have argued that what distinguishes government from a gang of robbers or pirates is that a legitimate government uses its powers to serve the public good, instead of operating like a mercenary, profiting off of the people. That was what America’s Founding Fathers thought—and it’s one reason they were outraged when King George III expanded the power of what were called “Vice-Admiralty Courts.” These courts had power to seize property without convicting the owner of a crime, and without giving people the due process they were entitled to. For example, owners were not presumed innocent, and they were not given jury trials. Worse, judges in Vice-Admiralty Courts could keep the profits of property seizures that they approved. John Adams called the use of these courts “the most grievous” of all the abuses the crown imposed before the Revolution, and the Founding Fathers even referred to these courts in the Declaration of Independence, when they complained that the British had “subject[ed] us to a jurisdiction foreign to our constitution and unacknowledged by our laws,” and had “depriv[ed] us, in many cases, of the benefits of trial by jury.” 

Yet today’s asset forfeiture laws do much the same thing. They allow police to take a person’s property without convicting that person of a crime. They deny people the presumption of innocence or the right to jury trials—as well as other basic principles of due process.

Predators, Not Protectors argues that two centuries after the American Revolution, asset forfeiture undermines confidence in the rule of law, encourages officials to approach their jobs with a mercenary mindset, and leads citizens to sympathize with lawbreakers instead of with the established legal system. They make it less likely that citizens will cooperate with police, more likely that they will resent rather than respect the judicial process—and encourage people to view law enforcement officers as a self-interested mercenary force rather than as neutral protectors of the peace.

At the Goldwater Institute, we’re pushing back against these unfair and unconstitutional laws in courts and legislatures nationwide. As discussed in the paper, Tucson handyman Kevin McBride was left stranded last year when police confiscated his Jeep—his primary source of income—using civil forfeiture laws and demanded $1,900 to return it. The Goldwater Institute threatened to sue the government, and Kevin got his Jeep back. The same thing happened when we took up the case of Malinda Harris, whose car was taken by officers in Berkshire County, Massachusetts. Additionally, we’re working with state legislatures to reform asset forfeiture laws that unfairly harm innocent Americans.

You can read Predators, Not Protectors: How Asset Forfeiture Undermines the Legitimacy of Government here, and you can read more about the Goldwater Institute’s work to stop civil forfeiture here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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