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FAQs on Civil Asset Forfeiture

16 February 2016 Published in The ACLU of Utah Activist

"Civil Asset Forfeiture" - it's a not-very-sexy name for a VERY important issue!Screen Shot 2016 02 16 at 2.40.56 PM

Civil asset forfeiture reform has been a hot topic so far this legislative session, and it actually came up in the context of law enforcement transparency last year in Utah, too. But it's been an even hotter topic, across the nation, for several years now, as police practices have been increasingly subjected to public scrutiny. You may recognize it by its much-more-sexy nickname, a moniker oft invoked in these national conversations: "policing for profit."

In the spirit of education and explanation, please enjoy the following FAQs on civil asset forfeiture and HB22 (the asset forfeiture reform bill currently before the legislature this session).

WHAT IS CIVIL ASSET FORFEITURE?

Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.

Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources. But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting. For people whose property has been seized through civil asset forfeiture, legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property. 

HOW DOES IT DIFFER FROM CRIMINAL FORFEITURE? 

The profound inequity of civil asset forfeiture system is exemplified by the distinction between criminal and civil forfeiture. Criminal forfeiture is imposed in a criminal proceeding directed against an individual for his or her alleged misconduct. While a defendant in a criminal forfeiture prosecution is entitled to all the constitutional and procedural protections associated with the criminal process, a person facing civil forfeiture, on the other hand, receives none of the constitutional safeguards associated with the doctrines of due process and criminal procedure.

WHAT IS THE ACLU'S POSITION ON CIVIL ASSET FORFEITURE?

The ACLU believes that all civil forfeiture schemes are inherently constitutionally problematic, in that they involve deprivation of property without due process, and the right to be free from punishment that is disproportionate to the offense.  The practice should be abandoned, and at the very least, we should seek reforms to mitigate its harshness, and incorporate equitable provisions and principles of due process.

WHAT DOES HB22, “Civil Asset Forfeiture Procedural Reforms” DO?

 This bill touches on and alleviates many of the ACLU’s concerns surrounding the practice of civil asset forfeiture:

  • Requires a nexus between property seized and the crime alleged to have been committed
  • If there is an acquittal in a subsequent criminal case, property seized must be returned, plus interest and court costs related to the seizure proceeding
  • Seeks to alleviate challenges for people to legally regain seized assets, including lack of legal representation and financial costs
  • Increases protections for innocent owners or those whose property may have been used in the commission of a crime unbeknownst to him or her.
  • Provides that seized assets go to the Uniform School Fund, thus preventing improper incentives for asset forfeiture