Civil Asset Forfeiture: Is it Constitutional?
Among the chief grievances included in the Declaration of Independence were the injustices arising from the arbitrary implementation of British law and the denial of criminal due process rights. After the Revolution, the framers of the Constitution and Bill of Rights sought to prevent the rise of a capricious criminal justice system like the one they had lived through under British rule.
To that end, they included provisions in the Bill of Rights strictly limiting the powers of the government to examine or seize a person’s effects and property. The Fourth Amendment declares that citizens have a right to “their persons, houses, papers, and effects, against unreasonable searches and seizures” and that no warrants may be issued without a statement of probable cause “particularly describing…things to be seized.” The Fifth Amendment reiterates that accused criminals shall not be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment ensures that people accused of crimes must be “informed of the nature and cause of the accusation,” and the Eighth Amendment forbids the government to impose “excessive fines” or “cruel and unusual punishments.”
In 2015, law enforcement agencies on the federal, state, and local levels utilize a mechanism called civil asset forfeiture, in which officers and agents may lawfully seize the property or money of individuals they suspect of committing or helping to commit a crime. An individual targeted by civil asset forfeiture need not be arraigned in court, nor do they need to be convicted of a crime. Sufficient probable cause to seize property, as the FBI explains, is defined as “reasonable ground for belief of guilt.”
This low legal threshold has ensnared individuals who have not been charged or convicted of a crime. Forfeiture can mean the loss of substantial amounts of money, the confiscation of a home, or in the case of Russ Caswell of Tewksbury, Massachusetts, the seizure of his family-owned motel.
Law enforcement officials argue that civil asset forfeiture is an important tool in the fight against crime. It can be used to deprive criminals of the money and resources they need to continue operating outside the law. During her Senate confirmation hearing, Attorney General Loretta Lynch argued that forfeiture laws have sufficient safeguards to protect innocent people. According to the Wall Street Journal, the value of forfeitures in 2014 exceeded $2.5 billion.
How should law enforcement agencies balance their mission to fight crime while respecting the rights of the suspected and the accused? Should forfeiture be expanded as law enforcement tool, or should it be abolished? Are there ways to reform the system to ensure that only the guilty feel the effects of forfeiture? This eLesson provides resources from both perspectives as students learn more about this constitutionally controversial tool.
Bill of Rights Institute Resources
News and Information Resources
Asset Forfeiture Laws Raise Concerns (Wall Street Journal)
Efforts to Curb Asset Seizures by Law Enforcement Hit Headwinds (Wall Street Journal)
Opposing Viewpoints Resources
Pro Perspective: Forfeiture is Reasonable, and It Works (The Federalist Society)
Con Perspective: Civil Forfeiture Assumes Guilt (The American Legislator)
Student Discussion Questions
- What is due process?
- How does the Bill of Rights protect due process and the rights of the accused?
- Do you think it is justified to take money or property from people accused of committing a crime, but have not been convicted by a judge or jury of doing so? Explain your answer.
- What options do people who are suspected of criminal guilt have when their property has been confiscated, but they have not been charged with any crime?
- What is your perspective? Is asset forfeiture practiced responsibly, or is it in need of reform? Why do you take your position?