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Incivility? Examining the Controversy Behind Civil Forfeiture

An underground marijuana operation. A former high school teacher. An unsuspecting wife. The scene resembles something from Breaking Bad, but for Kathleen von Hofe, the situation became a reality when the Branford, Connecticut police department raided her home in 2001.

While Harold von Hofe admitted to growing and distributing marijuana in the basement of their house, his wife staunchly maintained her ignorance of the entire operation, pleading guilty only to the possession of a controlled substance. According to the CBS News, both avoided prison time, receiving only a suspended sentence and probation. However, the ordeal continued for Mrs. von Hofe when the federal government seized her house shortly afterward in a legal maneuver known as civil forfeiture.

“Forfeiture is a tool in the government’s bag of tricks and it’s an unfair tool,” said Jonathan Einhorn, the attorney who represented both of the von Hofes. Civil forfeiture refers to a practice in which law enforcement can seize property or assets without necessarily charging their owner’s with a crime. In von Hofe’s case, the Branford police seized her ranch home despite the lack of charge or indictment against her. When von Hofe, represented by Einhorn, took the case to U.S. District Court of Appeals, she won her half of the house back, by arguing that the forfeiture represented an abuse of the excessive fines clause of the Eighth Amendment.

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A controversial legal practice, civil forfeiture has long been criticized by politicians, lawyers, and civil rights activists. In civil forfeiture, the owner of the property isn’t the one necessarily charged with a crime – instead, the object seized is considered to be guilty of illegal activity. While criminal forfeiture is what is typically seen in a Person A v. Person B court case between two parties, civil forfeiture cases are disputes between police and an object, leading to strange-sounding cases like United States v. Approximately 64,695 Pounds of Shark Fins.

By nature, civil forfeiture calls into question the power and authority of law enforcement. Because police departments can retain most of the property seized to supplement their own revenue, there is a fear that it incentivizes police corruption and aggression in targeting vulnerable individuals and their property.

Last month, Attorney General Eric Holder responded to these criticisms with a move to eliminate the Department of Justice’s Equitable Sharing Program, which allows local and state police forces to seize property and transfer it to the federal government.  The forfeiture case is then funneled into the Department of Justice, and the federal government takes about 20 percent of the asset’s worth, meaning that local police departments keep 80 percent of the seized property’s value.  While the Equitable Sharing Program was introduced in the 1980s to stop drug cartels, today it may actually be helping some police officers unfairly steal private property.

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Under Holder’s new policies, the federal government will no longer adopt local and state civil forfeiture cases. Groups like the American Civil Liberties Union lauded Holder’s announcement as a crucial step in meaningful criminal justice reform. Kanya Bennet, Legislative Council at ACLU, said, “In terms of the Attorney General’s order, the ACLU certainly applauded that. It’s a first step in addressing federal civil forfeiture that we feel is really fueling a lot of questionable police practices on the ground.”

Many of these “questionable practices” involve the unsavory topic of racial profiling.  The  ACLU suspects that minorities are disproportionately victim to having their property seized by the police.  Morrow v. City of Tenaha (an East Texas town) appears to be an example of the intersection between civil forfeiture and racial profiling.

The ACLU involved itself in the case “because of the egregious offenses and tactics that were used in the name of civil asset forfeiture,” explained Bennet. These offenses included police officers stopping, searching, and often seizing the property of African American and Latino drivers. According to the ACLU, over 140 cases involved police officers taking passengers’ money, lest the driver be charged for money laundering. The Tenaha police even threatened to put one couple’s children in foster care if they did not hand over $6,000.

Einhorn agreed that minority groups, especially illegal immigrants, were particularly vulnerable to being singled out by police forces. “There are entire counties in California where police budgets were funded by forfeitures. They’d pull over someone they’d determine to be illegal, they’d cheat them of their money and there was no way that person would want to have a hearing and end up being deported,” he said.

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Unfortunately, Holder’s ban on the Equitable Sharing Program may be little more than a political move.  In an interview with The Politic, Stephen B. Duke, a professor at Yale Law School said, “Attorney General Holder, in terminating the Justice Department’s equitable sharing program, did not put an end to civil forfeiture.  The termination simply requires state police to rely on state law in seizing assets and in determining who gets to keep them.”  In other words, civil forfeiture still exists; it is now just up to the states to decide whether or not to continue with the practice.

Some states had already wizened up to the practice before Holder’s decision to end equitable sharing. For example, Missouri passed the Civil Asset Forfeiture Act (CAFA) in 2001 to specifically close the loophole that allowed police departments to profit from equitable sharing. The new law ensured that seized assets went into a public education fund by defining ‘seizure’ as the moment police forces took possession of an individual’s property. While Missouri remains only one of the few states that have passed civil forfeiture reforms, several advocacy groups are  optimistic that the practice will eventually end or at least be mitigated by more stringent oversight.

“Hopefully, many legislatures, after study, will decide that the fruits of forfeiture should go elsewhere, such as the State’s general funds, schools or public defender organizations,” Duke said. “They will also, hopefully, confine the discretion of the police to seize assets and will reform the procedures by which the legitimacy of the seizures can be tested.”

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