The Civil Forfeiture is when one’s assets are taken by law enforcement officers once they are suspected of involvement with crime or illegal activity. The owners are not necessarily charged with wrongdoing. Once police seize the property they allege in the crime, it is taken away permanently by the government. The assets taken can include cars, cash, and real estate. The new bill introduced by the members of the U.S House of Representatives might change this unpopular practice.
Civil forfeiture originally came as a way of reducing and finishing large criminal enterprises through diversion of the important resources in the criminal enterprise.
However, this system has brought controversies since many police departments use it to benefit for ulterior motives rather than what the law intended to do. In many instances, they are driven to make profits rather than fighting crime.
This law has its origins in the Prohibition Era where law enforcers seized the property of bootleggers. However, prohibition ended in 1933 and this law ended. This law started to come back in the 1980’s in the fight against drugs.
In 1984, the Comprehensive Crime Control Act was passed that allowed local and federal law agencies to seize cash and assets. This included using the cash and property seized to restitute victims of fraud. Between 1985 and 1993 alone, the authorities confiscated 3 billion of cash and other assets. Ronald Regan and his administration supported this law in the fight against drugs.
According to the United States Justice Department, the justifications for civil forfeiture include punishment and deterrence of criminals and gangs, to enhance police cooperation among the different agencies and to bring in revenue for law enforcement.
A civil forfeiture begins when the police, law enforcers or government suspect that a specific property is connected with illegal activity. It then files a civil action in rem against the property. The government must prove that the said property tis connected with illegal activity and that it is forfeitable under the law of forfeiture in that given State.
Properties that can be confiscated include controlled substances, containers that hold the substances, firearms, machines use to make the substances, vehicles used to transport them, raw materials needed to make them, money and other valuables.
Russell Caswell a hotel owner whose property was seized after the government suspected that drugs were sold in his premises said that the civil forfeiture law was backward since it presumed somebody to be guilty and they had to prove themselves innocent and that law enforcers and prosecutors were abusing it. He said that it was expensive and average people could not afford to appeal against it.
In Colorado, marijuana has been legalized. Legalization was approved in the District of Colombia in 2014 but its implementation was overruled by congress. The effects of the overruling remain unclear since the bill prohibits the enactment, not legislation.
In the states of Colorado and Washington, 36 million dollars’ worth of cash and another property was processed by the federal government in civil and criminal marijuana forfeitures. This was between 2002 and 2012. In Washington, pursuing cannabis cases earned the local law enforcement in Washington between 6 million and 9 million dollars in forfeiture revenue since 2008. In the whole country, the federal government has collected over 1 billion dollars from marijuana cases as was reported by the Wall Street journal.
The Drug Enforcement Agency (DEA) has mailed landlords after the legalization clearing stating that under federal law, medical and recreational marijuana was still illegal and federal law agents had the right to confiscate their property under the Law of Civil Forfeiture. The DEA considers marijuana dispensaries as commercial tenants and not as private residents, therefore, civil forfeiture is allowed.
In this case, the federal government tried to force the landlords to evict the dispensaries. This was the first forfeiture case to be thrown out by a federal judge. According to Shambhala attorney, Henry Wykowski, the case was an example of scare tactics used by the federal government through the local U.S. Attorney’s office to push out hundreds of California dispensaries.
“Historically, the U.S. Attorney in California and San Francisco… has been very successful at closing down dispensaries by sending letters to the landlords, saying, ‘If you don’t evict this tenant, we’re going to file a forfeiture action against the property, and we’re going to take it,’” Wykowski said. “It was successful because it scared most people.”
Landlords’ are also allowed to claim an innocent owner’s defense. Here the landlord denies any knowledge of any criminal wrong doing with regards to the forfeiture action. Upon learning of the criminal activity, the federal government states that the landlord must do all that can be done to terminate that use on the property. This must be done immediately if this is the route taken. The federal government does not give a time frame except a timely fashion. How long that timely fashion may be is at the discretion of the landlord but sooner rather than later would be best. Along with removing the activity they must also give timely notice to the law enforcement agency of the information that the conduct has occurred.
In New Jersey, Scott G. Bullock, an American Civil rights lawyer represented Ms. Carol Thomas of Millville, NJ. The case began when her 17-year-old son used her car to sell Marijuana to an undercover police officer. Obviously, he was arrested and pled guilty. That was not the end of the federal government, though. The proceeded to sue Ms. Thomas for her car in a civil proceeding stating that it was used to facilitate illegal activity and in the state of NJ that is completely legal. Bullock states “People shouldn’t be losing their property if they haven’t been convicted of any crime.” He continually argues that when civil forfeiture attacks an innocent person, authorities do not respect the due process.
In Washington DC, once civil forfeiture takes place and property is seized, one pays up to $2500 to challenge the seizure by the police. This can take months or years for the court to make a decision and it is unfavorable for businesses. This made people who were innocent suffer financially and emotionally even though they win the decision later. They will also lose a lot of time in court battles. Civil forfeiture is an arbitrary punishment and it subverts State law.
Proponents of marijuana legalization have pushed for changing the forfeiture laws for a long time. Advocates have criticized the U.S Department of Justice system of accepting and processing seized assets such as cars, cash, valuables and other property from state and local law enforcement agencies through its Equitable Sharing Program retaining 20 percent of the proceeds from the seizure received from a state or local law enforcement agency and returns 80 percent of the proceeds to the state or local law enforcement agency that initiated the seizure.