By Rick Manning
Question: When is an American guilty until proven innocent?
Answer: When law enforcement confiscates property that is allegedly involved in or acquired through illegal means without benefit of ever having convicted the owner of a crime.
The fruits of this process known as civil asset forfeiture often show up at auctions where promises are made that you can buy government-confiscated cars, houses, boats, or jewelry for pennies on the dollar.
Seems simple and logical: the Feds take the drug dealers’ stuff and sell it to you at a low, low auction price.
But what if the alleged drug dealer is not actually guilty of anything and, in fact, never even accused of a crime? What if the Feds just swooped in and decided that, based upon a cursory review of bank records, your stuff needed to be confiscated?
Think it can’t happen? Think again.
The Wall Street Journal in November, 2014 told the story of a small candy and snack food distributor which had more than $440,000 in cash confiscated without charges, or even an allegation of wrongdoing, coming from the federal government.
Their money had been confiscated by a federal prosecutor and the burden of proof was on them to get it back — a burden of proof requiring that they show that their cash was not illicitly attained, rather than one that requires the government to show that it was.
Yet, while their business was in danger due to the loss of the cash flow needed to sustain it, they could not even go to court to seek the return of their money because the federal prosecutor failed to even file legal notice of the seizure. That’s right, the Feds had their money, but their appeal process was denied because, as far as the Court was concerned, the seizure never occurred.
Who was this federal prosecutor? It was Loretta Lynch, the current Attorney General of the United States who oversaw the U.S. Attorney’s Office for the Eastern District of New York.
It gets worse. The government is actually incentivized to engage in these confiscations and deny attempts to return wrongly taken items, because state and local governments share in the federal government’s cash haul. In fact, according to a Government Accountability Office report, the state and local government take from 2011 was $450 million, a startling incentive for assets to be targeted and seized.
Before he left office, former Attorney General Eric Holder told the nation the federal government would no longer engage in civil asset forfeiture.
But Congress still needs to make it official by reforming the Civil Asset Forfeiture Act to protect law-abiding citizens from this gross abuse of power. And by barring funds to assist a state or local law enforcement agency in seizing property pursuant to state law, or to take the seized asset and forfeit it under federal law.
Former House Judiciary Committee Chairman James Sensenbrenner (R-Wis.) along with current Chairman Robert Goodlatte (R-Va.) are leading the way in pushing for reform with Sensenbrenner expressing disbelief that “this can happen in America.”
But it does, and it is time to rip this program out by the roots and restore the presumption of innocence to the system.
Senator Rand Paul (R-Ky.) and Representative Tim Walberg (R-Mich.) have introduced legislation to do just that. Among the many features of The Fifth Amendment Integrity Restoration Act of 2015, Paul and Wahlberg’s bill would take the important steps of raising the level of proof necessary for the government to seize property and of restoring the principle of “innocent until proven guilty” into the system by placing the burden on the government to prove a property owner had knowledge of criminal activity.
Ignorance can no longer be an excuse. Failure to act to change the law and protect the rights of citizens from having their property stolen by the government is not an option – it is an imperative.
It is time for the House and Senate Judiciary Committees to take action to stop this abuse. It is time for Congress to take action on civil asset forfeiture reform, send a bill to the President’s desk before the end of the year, and end this legalized theft.
It is time because, as the case histories have shown, civil asset forfeiture is not just for drug dealers anymore. No, it is a threat to everyone.
The author is president of Americans for Limited Government.
