This commentary originally appeared in The Hill on April 19, 2017.
By any stretch of the imagination, it hasn’t been a banner couple of weeks for federal agencies that engage in the little-known practice of civil asset forfeiture.
Two separate reports—one by the Department of Justice’s Office of the Inspector General (OIG), and the other by the Treasury Inspector General for Tax Administration (TIGTA)—painted a bleak picture of both departments’ use of the practice, which allows federal law enforcement to seize, keep, and repurpose assets on the suspicion that they’re involved in criminal activity. This process was intended to target bona fide lawbreakers. However, it has become a veritable Godzilla of late, targeting not just proven criminals but individuals who have never been convicted of a crime, let alone even charged with one.
The process has come under withering scrutiny from across the ideological spectrum for years—from the Heritage Foundation to the ACLU—for its increasingly broad scope of practice and limited due process protections for innocent property owners.
Such proponents of reining in civil forfeiture have long argued that the practice hasn’t appeared to be in the interest of combating crime, but rather to generate profits. At face value, it’s difficult to argue otherwise. According to an Institute for Justice study, net assets in the DOJ and Treasury forfeiture funds increased by 485 percent between 2001 and 2014, but only 13 percent of DOJ forfeitures between 1997 and 2013 came after a criminal conviction. In other words, forfeiture activity has exploded, but not necessarily against those proven to have committed an actual crime.
These new reports do little to dissuade these concerns, either. According to an analysis of 100 DEA cash seizures that featured no court-issued warrant or presence of narcotics, the OIG found that the DEA could not verify in 56 cases that such seizures advanced or were related to ongoing criminal investigations. Meanwhile, the TIGTA found that the IRS has been freezing accounts under the guise of anti-structuring laws. These statutes were originally intended to combat criminal enterprises involved in money laundering. However, in a whopping 91 percent of sampled cases, the laws were being used to forfeit assets from individuals and businesses found to have obtained their income legally.
While supporters of the status quo are fond of claiming that individuals receive adequate due process in civil forfeiture proceedings before property is taken, a deeper scan of the OIG report reveals a disturbing lack of process at all. Of those DEA cash seizures performed between 2007 and 2016 that resulted in forfeiture, 81 percent were done administratively, which allows agencies to keep assets without judicial involvement whatsoever. These cases amount to little more than a rubber stamp, and are singularly lucrative: the DEA alone confiscated $3.2 billion from such forfeitures over that 10-year period. Orwell himself would shudder.
As troubling as these revelations are, they aren’t surprising. Such are the fruits of allowing federal bureaucracies to expand their authority on autopilot. By the very nature of its charter, the IRS is already imbued with awesome power to peer into nearly every aspect of a person’s life, and we’ve already seen what that capability has borne. In the recent past, various nonprofit groups have been targeted for inordinate scrutiny by the Lois Lerners of the world—unscrupulous types who will inevitably wield levers of power to dubious ends if given rein to do so.
The ability to unilaterally seize and keep property—with little recourse to the individual—is no different. The administrative swamp is deep and its reach broad, making it liable to ensnare many people whose sole transgression is being an easy target.
Fortunately, elected officials in Congress are taking renewed interest in the situation, refiling several bills that would greatly circumscribe the ability to forfeit property without appropriately tying it to criminal activity. They should move on the matter quickly. The government’s own watchdogs are confirming with hard facts what many people have suspected about civil forfeiture all along: that it’s being used against people who have done nothing wrong.
All that remains is to end it.