The difference between civil forfeiture and due process

Civil forfeiture has been a controversial legal policy since its use was implemented in 1984. It is the act of seizing property by law enforcement officers and involves confiscating property from suspected criminals but does not require a conviction from a judge. Over 24 states use civil forfeiture in some way according to CBS, with restrictions and property protections varying from state to state.

However, local law enforcement officers can get around these restrictions by taking their seized property and handing it over to the federal government in a process called “adoption,” which is how the federal government has come to seize one billion dollars in property in the last decade. With half of the states implementing this practice, it’s not surprising its use has drawn the ire of many Americans. In fact, 84 percent of the American people oppose its use without a criminal conviction according to a CATO institute poll from 2016.

It should not come as a surprise that this raises some eyebrows among many because currently, the confiscation of property via civil forfeiture does not require a conviction –  a violation of the Fourth Amendment protecting Americans from “unreasonable search and seizure.” This policy also violates the Fifth Amendment, which ensures the right to due process and states that “nor shall private property be taken for public use, without just compensation.”

The entire purpose of due process is to protect the innocent from punishment for crimes they did not commit and to maintain probable cause. By allowing this policy to exit, 24 state governments and the federal government have disregarded the rights of the citizens of this nation and subsequently defied the principle of innocent until proven guilty. This is made all the more disturbing when you remember that Attorney General Jeff Sessions had removed Obama-era restrictions on Civil Forfeiture, expanding its use nationwide according to CBS News.

This broad power being given to law enforcement only opens the door for broad abuse of power. It’s already been seen as Forbes reported, showing that Philadelphia seizes 300 to 500 houses and other pieces of real estate annually. The Washington Post found that nearly 62,000 cash seizures took place on the highway or elsewhere since 9/11 without a warrant or indictment. They also found that, despite the federal ban on the money being used to pay salaries, 298 departments and 210 task forces have seized 20 percent or more of their annual budgets since 2008. This use of unconstitutionally seized property to fund our government is abhorrent to the very principles of innocent until proven guilty.

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Conor J. Kelly was the Opinion Editor for the Lorian and a prolific staff writer. He graduated from Loras College in April of 2021 and is now pursuing his master's in political science at the University of Illinois, Springfield. You can find his new work on The Progressive American newsletter.

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