When Malinda Harris went to her car after her son borrowed it in March 2015, she received a shock that changed her life.
She was surprised by several police officers in Berkshire County, Mass., who ordered her to give them the vehicle — which she described as a “beautiful 2011 Infiniti G37” — and said it was suspected of being used in a drug crime.
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“I was terrified,” she testified at a House hearing Wednesday. “One of the officers demanded the keys to the car. He told me that they were taking the car whether I gave them the keys or not, but if I did not surrender my keys, they may end up damaging the car when moving it.”
The officers seized it under the state’s civil asset forfeiture law, even though Harris was never accused of an offense. “Nobody showed me a warrant,” she said. “Nobody gave me any sort of written receipt.”
Confiscating a vehicle temporarily might be reasonable for investigative purposes. But they kept the car for more than five years before even serving her with a complaint, she said, making life very hard for the low-income Harris. She finally got her car back this year with the pro bono help of the Goldwater Institute, a free-market research and litigation organization.
Her story is just one in a litany on the damaging consequences of civil asset forfeiture laws. They allow local, state and federal law enforcement agencies to seize personal property without proving or even charging the owner with a crime. The agencies then can sell the property and add the proceeds to their budgets.
Forfeiture data shows the seizures hit low-income people and Hispanic and Black people, like Harris, harder than White people in similar circumstances. It’s a common-ground issue for Democrats and Republicans, and civil liberties advocates spanning the political spectrum.
“Because these laws often lack the bare minimum of due-process protections, many of these operations are, in fact, trampling every major component of constitutional due process,” said Rep. Jamie B. Raskin (D-Md.), chairman of the House Oversight civil rights and civil liberties subcommittee. He co-sponsored, along with Rep. Tim Walberg (R-Mich.), the bipartisan Fifth Amendment Integrity Restoration Act that would raise the level of proof the federal government needs before confiscating property. To blunt seizure inducements, it also would direct revenue from the seized property to the Treasury Department instead of to police agencies.
“Too often, civil asset forfeiture creates a seize-first, ask-questions-later approach and incentive,” said Rep. Nancy Mace of South Carolina, the top Republican on the subcommittee.
Money is a major incentive for police agencies.
Even in states that have curtailed forfeiture, local police departments can reap the benefit under a federal sharing program. This allows state and local cases to be adopted by a federal agency that can then share up to 80 percent of the proceeds from sold forfeited property with the local agency.
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“This creates a perverse profit incentive, because law enforcement agencies can keep the revenues from forfeitures with little, if any, oversight as to how that money is being spent,” Raskin said, adding that state and federal officials took more than $68.8 billion through forfeitures from 2000 to 2018.
Dan Alban, co-director of the Institute for Justice’s National Initiative to End Forfeiture Abuse, testified that “in recent years, we have published multiple studies based on federal government data that found that civil forfeiture is ineffective at fighting crime but is used to generate more revenue when there are budget shortfalls.”
Responding to questions by email, a Justice Department spokesman said it is “committed to evaluating its civil asset forfeiture policies.”
For Rep. Andrew S. Clyde (R-Ga.), this “is a very much a personal interest of mine,” he said.
In 2013, years before the Republican was elected to Congress, the IRS seized more than $940,000 of his small-business funds on money-laundering suspicions, he said at the hearing, without any warning and without there ever being a criminal charge. The IRS eventually offered him a deal under which he would forfeit more than $300,000, “even though they admitted in writing that all the money was legally earned and properly reported in writing,” he said. “This was nothing short of extortion, and I refused.”
Clyde had the resources to fight the government. He won. But it cost him legal fees, time and tension.
Unlike Clyde, “very few individuals have the resources to take on the government, especially when the deck is stacked against property owners, as it is in civil asset forfeiture cases,” said Aamra Ahmad, an American Civil Liberties Union senior policy counsel. In addition to violating basic constitutional rights and creating “perverse profit motives,” Ahmad said, the laws “are executed in a manner that disproportionately impacts people of color and low-income individuals.”
She pointed to 2018 federal data showing Black people are 3.6 times as likely as White people to be arrested for marijuana possession, despite using it at similar rates, as an example of situations that could lead to racially based, disproportionate property confiscation. Ahmad also cited a 2014 Washington Post investigation of 400 federal court cases involving people who had property confiscated. The majority were Black, Hispanic or other people of color.
For Harris, her tangle with asset forfeiture was, she said, “even worse than being victimized by a criminal. The forcible deprivation of property feels the same, but at least when someone steals from you, you can call the police.”
“When it is the police taking your property,” she asked, “who can you call?”
