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The Forfeiture Epidemic: When the Government Just Takes Your Property and Keeps It

Many people here in Dallas and around the State of Texas naively assume that their property is theirs, protected by state laws and the federal Constitution from being taken from them without legal due process. They are wrong.

There are laws on the books, passed by the Texas Legislature and the U.S. Congress, that allow the government to take a citizen’s property without court involvement or judicial process. It’s called “forfeiture” and it is happening in this country today in epidemic proportions.

Three Kinds of Forfeiture

There are three types of forfeiture. All involve seizure of a person’s property by government officials. These are:

1. Asset forfeiture, where federal agencies seize your stuff under 19 U.S.C. § 1607 if they have probable cause. They can take all your money; all your personal property that is valued up to $500,000 (think cars, SUVs, jewelry, guns, etc.) but they cannot take your real estate.

2. Criminal forfeiture, where a defendant facing criminal charges (but not convicted) has his or her property seized by the government because the authorities have labelled it “property used or derived from the crime.” If the defendant is found guilty, then his or her ownership is “forfeited” to the government. It’s the judge’s call and it’s part of the sentencing in the case.

3. Civil forfeiture, where no criminal charges much less a criminal conviction is needed. The property is seized. Here, the government targets the property itself and if it can show that there is a connection between the property and a crime, then the property is forfeited. There is a lower burden of proof here than in a criminal case. In a criminal matter, the prosecution must prove their case “beyond a reasonable doubt.” In a civil case, like civil forfeiture, the burden is much lower: they win with a “preponderance of the evidence.”

Civil forfeiture actions are used in money laundering investigations, for example, as well as federal structuring cases. (For more on structuring, go here.)

Police Profit from Forfeitures: Abuse of Forfeiture Laws by Law Enforcement

Civil forfeiture makes lots of money for police departments and federal agencies these days. While authorities point to the growing number of criminal drug prosecutions over time, and assert that the War on Drugs has had as a byproduct an increase in forfeiture revenues, there are many that suggest the profitability offered by forfeiture may be a big incentive for many police officers to seize property.

In March 2010, a report was published by the Institute for Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture, which investigated forfeitures all over the United States (including federal agencies as well as state and local law enforcement).

That report revealed that in Texas, over a 7 year period from 2001 to 2008, total assets seized in forfeiture proceedings jumped from $18,983,274 to $49,179,252, for a total $225,592,873 in civil forfeiture of assets in Texas.   The report also revealed some examples of how the ability to take property under civil forfeiture laws has been abused by officials.

1. The report spot-checked 52 Texas law enforcement agencies and found that forfeiture dollars covered around 37% of agency budgets.
2. Drug use in the United States has been at a steady rate – not increasing much, not decreasing much, for the past 30 years. So, the rationale that forfeitures are rising because of the War on Drugs doesn’t jive with the statistics on drug use in America.
3. Of all the states, Texas ranked lowest in the report with an overall grade of D- (along with Georgia, Michigan, Virginia and West Virginia).

We’ve stored the complete report in the Michael Lowe Digital Library if you want to look it over or read the whole thing (go here).

We’ve been monitoring abuse of forefeiture laws for years.  For more on forfeiture abuse in Texas, read our prior posts on the problem including:

And watch the Institute’s video (2:36) that explains the reality of forfeiture abuse by law enforcement agencies all over the country:



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