Civil asset forfeiture is a legal process that empowers government agents to confiscate property when they suspect it was used for, or derived from, criminal activity. Because it is a civil action, the agents’ suspicions do not need to be proved beyond a reasonable doubt—a “preponderance of the evidence” is sufficient. And because the action is against the property itself, the owner does not need to be charged with, let alone convicted of, a crime.
Civil asset forfeiture is inherently unjust and a violation of due process. Worse still, it perverts the proper relationship between the police and the public by turning the former into predators and the latter into their prey.
When it comes to protecting citizens from this abusive practice, North Carolina has always been a leader. Under North Carolina’s criminal statutes, before property can be forfeited, the owner must generally be convicted of a crime, and, under North Carolina’s Constitution, after property has been forfeited, the proceeds must always be used for “maintaining free public schools.”
Unfortunately, these protections under North Carolina law have been increasingly undermined by federal “asset sharing” programs. Under these programs, state and local police departments are encouraged to work with federal law enforcement agencies to seize and process assets under federal law. In return, they receive the bulk of the proceeds for their own use. To continue to lead, North Carolina must take steps to prevent, or severely curtail, participation by state agencies in these asset-sharing programs.
- The federal government revived the practice of civil asset forfeiture in the 1970s as a novel weapon in the War on Drugs. Its use by federal agencies has expanded rapidly since then. In 2014, U.S. Department of Justice seizures alone were worth $4.5 billion.
- Inspired by the federal example, most states adopted civil asset forfeiture laws of their own, but, to its credit, North Carolina did not. The features of North Carolina’s forfeiture law listed above have been praised in repeated editions of the Institute for Justice’s “Policing for Profit” report. Last year, North Carolina earned the top score in a report by Freedom Works titled, “Civil Asset Forfeiture: Grading the States.”
- As noted, the Department of Justice (DOJ) has used asset-sharing programs to encourage state and local police departments to seize assets under federal forfeiture laws. Between 2000 and 2013, the DOJ alone returned $4.7 billion in shared assets to state and local agencies.
- According to the Institute for Justice (IJ), “When civil forfeiture is more difficult and less financially rewarding under state law, law enforcement agencies turn to federal asset sharing instead.” This is what has happened in North Carolina. IJ ranks North Carolina among the 10 worst states in terms of asset sharing and notes that, “Law enforcement agencies in the Tar Heel State received more than $162 million in DOJ proceeds between the 2000 and 2013 calendar years [and] over $42 million from the Treasury Department.”
- The best solution for North Carolina—and for the rest of the country—would be for the federal government to cut back or abolish its asset-sharing programs, and this may eventually happen. In the meantime, however, the states must take steps to curtail federal asset sharing under their own laws.
- New Mexico and Nebraska have already taken steps to do so. Recently enacted bills in both states not only abolished civil asset forfeiture under state law; they also imposed monetary thresholds that must be met before state agencies can participate in federal asset-sharing programs. The thresholds are $50,000 and $25,000 respectively.
- Ideally, North Carolina should eliminate federal asset-sharing altogether.
- If federal sharing is permitted to continue, it must be severely restricted. There should be a high monetary threshold. The police should be required to show, by clear and convincing evidence, that the owner of the seized property knew it was used for or derived from criminal activity. The state should ensure that shared proceeds are deposited in the General Fund and used for public education or tax cuts, rather than returned to the police department that seized the property.