On March 20, 2012, the Washington D.C. Metropolitan Police Department pulled over Nelly Moreira’s car. Moreira was not present; her son was the only person in the vehicle. When police conducted a routine search of him, they found an unregistered handgun in his waistband. He was arrested and the car was duly impounded: All of this was protocol.
After the incident, Nelly Moreira inquired about her vehicle. She depended on it to get to her two jobs and was already struggling to make ends meet. Four months and a $1,020 bond later (which she was told to pay in exchange for a hearing), she had received neither a hearing nor her property. Moreira’s case was taken up by a public defender, and seven difficult months after her son was arrested, the police were forced to relinquish the car.
All of this was protocol.
Nelly Moreira was the victim of a policing mechanism called civil asset forfeiture. In this common practice law enforcement can confiscate property connected to an alleged crime, even if the owner has not been charged with any wrongdoing. The use of civil asset forfeiture is widespread; it is currently legal in 42 states and at the federal level, prompting the ACLU to note, “[e]very year, federal and state law enforcement agents seize millions of dollars from civilians … simply by asserting that they believe the money is connected to some illegal activity and without ever pursuing criminal charges. Under federal law and the laws of most states, they are entitled to keep most (and sometimes all) of the money and property they seize.” The last condition is the most pernicious, allowing police departments to derive a meaningful source of funding from people like Moreira. Cash and sellable assets thereby form a perverse incentive for police to confiscate anything in the vicinity of a crime.
As traumatic and burdensome as Moreira’s experience was, her run-in with civil asset forfeiture seems moderate in comparison to other horror stories. Sarah Stillman, author of a groundbreaking 2013 New Yorker article on civil asset forfeiture, demonstrated as much with the experiences of Jennifer Boatright and her two children. Boatright, her sons and her boyfriend were driving through Texas in 2007 when they were pulled over. The officer asked if he could search the car, and having nothing to hide, Boatright and her boyfriend agreed. The officers “found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. According to the police report, Boatright and [her boyfriend] fit the profile of drug couriers: they were driving from Houston, ‘a known point for distribution of illegal narcotics,’ to Linden, ‘a known place to receive illegal narcotics.’ The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana.” No marijuana was ever found, but that didn’t stop the local prosecutor from offering them a choice: they could either sign over their cash or possibly be charged with money laundering and child endangerment. Boatright and her boyfriend were forced to give into highway robbery.
Abuse surrounding civil asset forfeiture statutes can be indirect like in Moreira’s case or obviously coercive as in Boatright’s. Such a wide range of experiences illustrates the expansive leeway given to police departments and their agents. As the Institute for Justice details, property can be seized without a warrant as long as it is plausibly connected to a crime. Thanks to the “preponderance of the evidence” standard used in proceedings to defend civil asset forfeiture, the connection between property and the crime need not be definitive. In contrast to criminal asset forfeiture, which uses a “reasonable doubt” metric, “preponderance of the evidence” makes the burden of proof significantly lower for the state in civil proceedings. Since police departments have much less difficulty meeting this bar, they are more likely to confiscate capriciously. Furthermore, if the property owner decides to try and reclaim the confiscated items, the burden is on them to prove that they had no connection with the alleged crime. The government, rather than the accused, is given the benefit of the doubt, making people like Nelly Moreira and Jennifer Boatright guilty until proven innocent.
Structural disadvantages in the legal system do not stop with the burden of proof or a lack of warrants. Poor people and racial minorities are disproportionately targeted because of their particular inability to seek restitution. Most civil forfeiture statutes give officers a much wider berth for property of low monetary value, so the wealthy’s possessions are generally safe. However, someone who doesn’t have the financial clout or know-how to access a lawyer and navigate the opaque property-reclamation process is basically at the mercy of the police. Hence the authorities target the vulnerable portions of society; the median value for a civil forfeiture in Georgia, for example, hovers at a paltry $647. That money is being taken from those who need it most.
Most civil asset forfeiture victims face an uphill slog when trying to reclaim their property, so many don’t. The police know this, which is why they are not squeamish about confiscating the possessions of people who are never going to be charged with a crime. The numbers validate this problem: 80 percent of the individuals whose property is confiscated under civil asset forfeiture are never prosecuted. What innocent people lose through arrogation, police departments and local governments gain in funding. The most egregious abuses of civil forfeiture laws are in states that allow the police to use what they confiscate to top off their coffers. In a survey for the Journal of Criminal Justice, John Worrall found that 40 percent of law enforcement executives held civil asset forfeitures as “a necessary budget supplement”. When state regulations don’t permit the police to fund themselves with their ill-gotten gains, local departments often circumvent the rules by taking advantage of equitable sharing provisions. These statutes enable local and federal operatives to split the value of those assets they confiscate in joint operations, thereby sidestepping prohibitions on using seized funds. In sum, there exist few safeguards against lucrative, heavy-handed policing.
As long as police departments have all the advantages on their side when it comes to confiscating property — as well as the financial incentive to use them — civil asset forfeiture will not go away. The United States’ most marginalized residents will continue to chafe under arbitrary expropriation, and law enforcement officials will continue to violate their mandate to protect and serve. For these reasons it’s essential to turn up the focus on this policy, lest more individuals end up like Nelly Moreira, Jennifer Boatright and the many others whose stories are beginning to surface. It’s clear that they are only the tip of the iceberg, and that is deeply worrisome.