Recent years have brought public scrutiny on a controversial law enforcement practice known as civil asset forfeiture, which lets police seize and keep cash and property from people who are never convicted — and in many cases, even charged — with wrongdoing. But despite a growing public outcry spurred in part by news investigations and congressional hearings, a new report Tuesday from the Institute for Justice, a nonprofit civil-liberties law firm, finds that the past decade has seen a "meteoric, exponential increase" in the use of the practice.
The government does not measure the number of times per year that assets are seized. But one common measure of the practice is the amount of money in the asset forfeiture funds of the Department of Justice and the U.S. Treasury, the two agencies that typically perform forfeitures at the federal level. In 2008, there were less than $1.5 billion in the combined asset forfeiture funds of the Justice Department and the U.S. Treasury, according to the report. But by 2014, that number had tripled, to roughly $4.5 billion.
In an e-mail, a Justice Department spokesman pointed out that big cases, likethe $1.7 billion Bernie Madoff judgment and a $1.2 billion case associated with Toyota, have led to large deposits to forfeiture funds in a single year. It's not possible to determine precisely how much of these deposits have been subsequently released to victims.
The figures above show the size of the funds after deposits and expenditures are accounted for. "In a given year, one or two high-dollar cases may produce unusually large amounts of money — with a portion going back to victims — thereby telling a noisy story of year-to-year activity levels," the report found. The numbers above represent a more stable and accurate account of forfeiture activity, according to the Institute for Justice.
"Even without those major cases, the overall trend is still upward," said report co-author Lisa Knepper.
One possible explanation for the recent rise is that "the years 2008 to 2014 were some lean economic years," said report co-author Dick Carpenter in an interview. "Forfeiture is an attractive way to keep revenue streams flowing when budgets are tight."
Law enforcement officers generally acknowledged this factor, according a Washington Post investigation last year: "All of our home towns are sitting on a tax-liberating gold mine,” Deputy Ron Hain of Kane County, Ill., wrote in aself-published book in 2011.
Critics of the system also say that the increase in forfeiture activity is due largely to the profit motive created by laws which allow police to keep some or all of the assets they seize.
"It’s possible that the spike is due to a growing recognition by law enforcement of the profitability of forfeiture," said Carpenter. He notes that Congress made some attempt to rein in forfeiture abuses with a modest reform bill in 2000. After that, "elected officials stopped paying attention," he said. "The combination of low procedural hurdles, high profit incentive, and meager accountability or oversight created a rich environment for forfeiture activities to flourish."
Civil asset forfeiture "is happening to every day people in every state across the country," the Institute for Justice's Carpenter said. "There are people here in your community to whom this is happening. This is not something isolated happening to drug kingpins and mafiosos."
In one case represented by the Institute, a drug task force seized $11,000 from a college student at an airport because his luggage smelled like marijuana. They lacked evidence to charge him with any crime, but they kept the money and planned to divvy it up between 13 different law enforcement agencies, most of which had nothing to do with the actual seizure of cash.
In another case, the IRS emptied a convenience store owner's bank accountbecause it suspected he was depositing cash in such a way as to avoid reporting requirements for large deposits. He eventually won his money back after a lengthy court fight.
"Once property is seized," the report explains, "owners must navigate a confusing, complex and often expensive legal process to try to win it back." In Illinois, for example, in order to challenge a seizure property owners must pay a bond of up to 10 percent of the property's value. If they lose their challenge, they must pay for the full legal cost of the proceedings. "Even if they win, they lose 10 percent of the bond on top of whatever attorney costs they accrued," the report found.
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