Critics of civil forfeiture describe it as "state-sanctioned theft," but that definition is incomplete. The practice upends a state's responsibility to protect its citizens' constitutional rights by forbidding the confiscation of their assets when they haven't been convicted, much less charged, with a crime. Congress and state legislatures have an obligation to reform the practice, thus preventing those citizens' further victimization.
Reform efforts have been bipartisan, with criticisms fueled by organizations as diverse as the American Civil Liberties Union (and its Tennessee affiliate) and the Heritage Foundation's Institute for Justice. In Tennessee, the libertarian Beacon Center is a persistent advocate for reform. But so far, cynical legislative inaction has kept the outrage alive.
Under criminal forfeiture, the government can take a person's property after he or she has been convicted of a crime.
Civil forfeiture, however, is the mirror image of that practice: Governments can take your property, including cash, merely under the assumption a crime has been committed. In effect, it is your property that has been "convicted."
A citizen can get his property or cash returned but only after litigation that forces the owner to hire his or her own lawyer. The resulting hearing is Kafkaesque: Barney Fife doesn't have to prove you're guilty. You have to prove a negative - that you're innocent because the property or cash was not connected to a crime. That's an inexcusable perversion of the judicial process.
Law enforcement agencies benefit handsomely from civil forfeiture, since when seized property is sold, they're often allowed to keep the proceeds. Thus the term, "policing for profit."
How much profit? The Times Free Press' Andy Sher reported last year that state law enforcement agencies "seized almost $86 million in cash from 2009 to 2014 through use of civil forfeiture laws allowing the money to be confiscated without criminal charges." But he added that figure doesn't include the value of seized and sale of real and personal property.
It gets worse. Sher noted that figure didn't count "another $69 million Tennessee police agencies received between 2000 and 2013 through a U.S. Department of Justice asset-splitting program known as equitable sharing." When roughly $10 million from another federal asset seizure program is added, Sher wrote, the police agencies' "profit" was about $165 million since 2000.
No wonder that when the Institute for Justice graded state civil forfeiture programs, Tennessee received a D-.
There is some support for stringent reform in Nashville, including requiring police agencies to use criminal laws as the rationale for seizures. That would prove evidence without a doubt that the property in question had indeed been part of a criminal enterprise. As it stands now, a preponderance of evidence - the standard used in civil trials - is deemed sufficient.
According to The Tennessean newspaper, a House member did sponsor a bill this year "requiring the department of safety to issue a report to legislators that includes the total number of seizures in a given year." That would be helpful in drafting future legislation but it also underscores that the Legislature has so far shirked its responsibility to tame an out-of-control practice.