Asset Forfeiture

The Issue

Asset forfeiture has become an important part of our legal framework and it can be a powerful crime control weapon.  But due to the steady erosion of procedural protections, forfeiture powers often skew law enforcement priorities in ways that threaten individual rights.

In particular, statutes that give law enforcement agencies a direct financial stake in forfeiture proceeds invite abuse.  For law-abiding citizens, the consequences are severe:  innocent property owners are harassed and deprived of their property without due process; law enforcement policies that explicitly or implicitly encourage racial profiling take root; and public confidence in law enforcement deteriorates.  In the area of civil asset forfeiture, the most important reform to address the abuse of civil asset forfeiture is relatively simple:  Congress should amend the federal equitable sharing laws1 under which state police circumvent state forfeiture laws by turning over the forfeiture to federal law enforcement authorities in exchange for a percentage of the proceeds.

By contrast, the scope of criminal asset forfeiture laws has expanded in recent years, while procedural protections have eroded.  Comprehensive reform of criminal asset forfeiture laws, which can impair the accused’s ability to retain counsel as well as the rights of third parties, is long overdue.  Paramount among the needed reforms are changes to the Federal Rules of Criminal Procedure that would safeguard the accused’s right to a fair procedure for determining the amount of any criminal forfeiture and, in particular, provide a right to challenge ex parte restraining orders that are permitted under federal law.2