The practice of law enforcement agencies in the United States seizing private property is one of the clearest examples of how much power the government has been permitted to gain. Although the idea of forcibly appropriating the assets of citizens as punishment for violation of the law has been practiced on the North American continent for hundreds of years, for a long time it was only used infrequently and was generally ignored by law enforcement.

There were only a handful of timeframes and circumstances when civil asset forfeiture was used with any regularity, such as in enforcement of the British Navigation Acts of the 1600s or of Prohibition laws in the 1920s and early 1930s. The excessive outgrowth of the predatory practice of asset forfeiture as we know it today has been a relatively recent development.

The spark that started this wildfire was the Comprehensive Crime Control Act of 1984, part of an appropriations bill signed into law by President Ronald Reagan. This piece of legislation vastly expanded the ability of law enforcement to use asset forfeiture. For example, it authorized courts to issue warrants for property seizure in the same way they would issue search warrants—which is to say, based on probable cause rather than criminal conviction. Citizens could now lose their property without having been found guilty of any crime. It also allowed courts to order the forfeiture of “substitute assets” if the original property deemed to have been associated with a crime was not able to be seized. (See Title III of this Act for a comprehensive list of allowances made for asset forfeiture.)

Importantly, it also set up significant financial incentives tied to asset forfeiture by allowing for the retention of forfeited property and by creating an arrangement whereby state and local agencies can share seizures with federal agencies. This arrangement has come to be known as “equitable sharing.” Under this arrangement, these state and local agencies are allowed to keep up to 80 percent of the proceeds of whatever seizures they share with federal agencies. This perverse cash incentive allows police to garner more revenue for their department the more private property they take away from citizens, and the same bill which paved the way for that dynamic also established that they can take just about anything without needing a criminal conviction or a preponderance of evidence. All they need is probable cause.

Even though the legal requirements for seizure are extremely low, there have been an aggravating number of cases in which property was taken without even meeting them. In 2014, the Washington Post analyzed seizure records from the Department of Justice to understand how prevalent asset forfeiture was. In their report, they show that in the time between September 11, 2001, and their study in 2014, there had been 61,998 completely warrantless cash seizures made on highways and shared with federal agencies through the Equitable Sharing Program, constituting $2.5 billion in takings.

Read More