It’s Time to Rein in the Injustice of Asset Forfeiture

The Goldwater Institute urged the Supreme Court today to give basic due process protections to innocent Americans whose property is seized by the government under abusive “civil asset forfeiture” laws. Those laws allow the government to confiscate property involved in a crime, even if the owner is entirely innocent of wrongdoing. That’s abusive enough, but the case before the Supreme Court involves an additional issue: whether the government can keep property in its possession during the time it takes for a judge to decide whether the confiscation is legal in the first place.

The case began as a pair of class-action lawsuits against the attorney general of Alabama on behalf of innocent property owners. The property owners’ cars were not only targeted for seizure by law enforcement agencies, but were also impounded during the months—possibly even years—that it takes a court to rule on the legality of the forfeiture. (Lawyers use the Latin term “pendente lite”—meaning “during litigation”—to refer to such detention.) When people are accused of crimes, the rule is clear: the government cannot keep someone in jail “pendente lite” without at least giving that person a hearing to prove that there’s some reason to keep him detained until conclusion of the trial. But what about property?

This is important because property depreciates, and people need their stuff during the time it takes for a court to hold a trial. In this case, for example, an Alabama woman named Halima Culley had her car taken by law enforcement in February 2019—even though she had merely lent her car to someone who committed a crime in it, without her knowledge—and it took thirteen months before the court finally ruled that she was entitled to have it back. A year and a month is a long to go without your car. And forfeiture involves much more than cars: houses and even entire businesses can be seized, too. As one court observed, in a case where a business was targeted for forfeiture, “the tangible property of the claimant can be returned post-trial, [but]…the business itself would at that point be drained of any good will by the summary closing, because the old customers would by then have resorted to new places.”

Some federal courts have held that when property is targeted under the forfeiture laws, the government must give the owner a hearing so that she can at least argue that she needs her car between now and the trial. But other federal courts have ruled that such a hearing is not required. They’ve adopted a rule that says that as long as the ultimate trial is held in a timely fashion, prosecutors aren’t required to prove some special necessity to keep property impounded. And the reasoning behind that rule is constitutionally flimsy, because it employs the Sixth Amendment’s “Speedy Trial” Clause, instead of the Fifth Amendment’s “Due Process of Law” Clause.

The latter applies to people accused of crimes, and it’s more stringent than the “Speedy Trial” Clause. So if the “Speedy Trial” rule applies, instead of the “Due Process” rule, that gives government far more power to take and keep property prior to a final decision in the lawsuit.

In our brief, joined by our friends at Pacific Legal Foundation and the Manhattan Institute, we argue not only that the Due Process Clause is the one courts should rely on—after all, it specifically applies to the “deprivation” of “property.” That means owners should be entitled to a prompt hearing on the question of “pendente lite” confiscations. But there’s more: the court should reconsider the entire theory of asset forfeiture. That practice invites abuse by prosecutors who can use the taking of property to evade the Constitution’s protections for individual rights, and by law enforcement departments, which can use forfeitures to fund themselves in ways that are contrary to our democratic system of government. Law enforcement should be paid for by tax dollars voted on by the people’s elected representatives—not by money taken from innocent property owners who often can’t even afford legal representation.

In fact, as we explain in the brief, America’s founding fathers knew about forfeiture; they regarded it as an abuse of government power, and it was one of the reasons for the American Revolution. They objected to a legal system that allowed the government to take people’s property without giving them a fair trial. And they feared that forfeiture also can encourage what today’s sociologists call “legal cynicism”: the attitude that law enforcement is an untrustworthy and dangerous force, rather than a protector of the public peace. It’s time our forfeiture laws were brought into line with the principles of democracy and the rules of our Constitution.

The court is expected to hear arguments in the Alabama case this fall. You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.