Russell Hebets Sept. 23, 2015

A new bill has been introduced to end forfeiture funding of the DEA’s Marijuana Suppression programs. The bill is a bipartisan effort to modify was has become a widely abused system of asset forfeiture from innocent citizens, who in many cases have not even been charged with any crimes. 

What is Asset Forfeiture? 

According to the Department of Justice, asset forfeiture is used to seize the proceeds from crimes, in particular drug trafficking and organized crime, in order to apply those funds towards safety and enforcement in the community. The rationale of the program is the belief that by removing the means to facilitate crimes, the system is not just incarcerating guilty individuals but also weakening the organizations that support them. 

How is it Really Working? 

While the intent behind forfeiture is bolstering community safety and funding police, it has been so widely abused that voices from all walks of life are now speaking to end it. Police organizations have so much latitude to seize property that the seizures may even occur on suspicion of activity. For example, a young college student, Charles Clarke, had his life savings taken on a DEA search at the airport. He was not found with any evidence of drugs or any other crime, yet the officers cited probable cause and took $11,000 from him, money he struggled, scrimped and saved to earn. The DEA was well within their rights and sadly, those like Charles Clarke, who are victims of this program, have little recourse. 

A Fraught System 

Civil asset forfeiture violates the 5th amendment right to due process. The DEA may confiscate on the presumption of guilt, regardless of the individual being charged or convicted of any crime; and the process to prove innocence and regain assets is an uphill battle. Those involved in forfeiture seizure do not have the right to an attorney, and it is hard to prove your innocence when you do not even have a case or a forum to speak your side. The challenge of proving you are innocent, had no knowledge of any criminal activity and that the property had itself never been utilized in a crime is very difficult.  Since the property is essentially what is deemed guilty, as opposed to the person, it is well-nigh impossible to prove your innocence. Further, it compromises any sense of justice by the widely disparate values of property seized, anything from a $100,000 luxury car to a couple thousand dollars; and when there is no charge for any crime, even less justice is served. On one occasion, all the cars in the lot of a museum were seized, because the museum served alcohol without a license. Another time, a home was seized when a family member was charged with selling $40 worth of marijuana on its porch.   

In Denver, the Nuisance Abatement program is the means by which local law enforcement may seize vehicles or homes involved in alleged crimes. The program will impound a vehicle said to be involved in a crime and then require a $2500 bond to release it.  If, for example, parents loan a car to their son, and say he is pulled over for a suspended license, the car may then be impounded, forcing the owners to pay for an infraction they did not commit. Homes may be seized too, regardless of the property owner’s involvement or knowledge of any alleged crimes. The time limits to fight the seizure are short and the city is under no obligation to property owners and may go ahead and auction the vehicle or the home. 

The Changing Tide

Forfeiture abuse has become so egregious that police have grown accustomed to having it fund their activities, even using it as a “wish list” for what they may need.  In 1985, the DOJ’s asset forfeiture fund was worth $27 million; by 2013 it topped $2 billion. And the stories behind this explosive increase are alarming and contrary to our constitutional values.  In January, Attorney General Eric Holder banned local and state police from using federal law to seize property without proper warrants and charges. The aforementioned “Stop Civil Asset Forfeiture Funding for Marijuana Suppression Act” bill was introduced to end the use of forfeiture to fund some DEA programs. And another bipartisan bill, called FAIR, wants to increase the burden of proof on the government in forfeiture cases and put seized assets into the General Fund of the Treasury instead of DOJ accounts.  Civil asset forfeiture is increasingly recognized as a constitutional violation and a devastating experience to its victims. But with bipartisan support behind these legislative actions, there is hope for a more just and appropriate response as well as opportunities for victims to fight seizures and regain their assets.