“Now It’s Ours”: The Unconstitutionality of Civil Asset Forfeiture

I. Introduction 

A police car drives by. It’s a Cadillac Escalade stenciled with the statement, “THIS USED TO BE A DRUG DEALER’S CAR, NOW IT’S OURS.”1 The pronouncement boasts the police’s use of civil asset forfeiture, the practice of seizing property that is thought to be involved in a crime. Civil asset forfeiture is an in rem action, meaning it is filed against the property itself rather than a person.2 In contrast, criminal forfeiture is an in personam action where property is seized as a punishment for its owner, who is the offender of a crime to which the property is related.3 Another key difference between the two is that civil forfeiture does not require a conviction or even an accusation; rather, the government only has to prove a preponderance of evidence – the lowest burden of proof in civil cases – to make the property forfeitable.4 After the seizure, in most jurisdictions, the property is either kept or sold by the law enforcement agency, which then retains a portion of the profits.5 Following this, the burden of proof shifts to the property owner, who must prove their property was not involved in illegal activity to regain ownership—a complicated and costly process.6 As a result, although it is possible that the vehicle was taken from a convicted drug dealer, it is also possible that the seized Cadillac was taken from someone who was never found guilty or even accused of a crime. It could even belong to an innocent civilian who could not afford the time or money to hire an attorney and file a claim to get their property back. In light of insufficient safeguards to protect innocent individuals from unjust seizures, civil asset forfeiture should be abolished because it violates the Fourth, Eighth, and Fourteenth Amendments, as well as due process rights.

II. History of Civil Asset Forfeiture

The history of civil asset forfeiture is the expansion from a niche protection against large-scale crime into an avenue for the government to abuse its power. Civil asset forfeiture became an established part of American law in 1970 as a means to seize the illegal gains of organized crime figures.7 Later, in 1978, Congress expanded it and permitted the seizure of all proceeds from the illegal drug trade.8 It aimed to prevent large-scale criminal operations from functioning by depriving them of their working capital and then using the forfeiture profits to fight crime.9 Then, it expanded dramatically during the War on Drugs with the passage of the Comprehensive Crime Control Act of 1984, which authorized the forfeiture of all real property related to a federal narcotics felony.10 It also established equitable sharing, or the process where law enforcement agencies keep a portion of the proceeds they make from selling forfeited property, making them financially benefit from each seizure.11 It was again expanded with the Monday Laundry Control Act of 1986, which authorized the forfeiture of any property involved in a transaction or an attempted one in violation of a variety of statutes related to money laundering (Titles 31, 5324(a), 18 1956, and 18 1957).12 Following these expansions and the creation of a financial incentive for seizing property, the country saw a dramatic increase in federal forfeitures: between 1986 and 2014, they grew by more than 4,600%.13 In short, the specific initial function of civil asset forfeiture has greatly expanded into a crucial feature of the budgets of law enforcement agencies–a move that has led to concerns about a break from crime-fighting aims toward profit-making goals.14

III. Modern Reforms

Hoping to reform this unjust practice, lawmakers on both the state and federal levels have made moves to alter and even abolish civil asset forfeiture. U.S. Senators Cory Booker (D-NJ) and Rand Paul (R-KY) have introduced the Fifth Amendment Integrity Restoration (FAIR) Act.15 Its aims include eliminating equitable sharing, increasing the standard of evidence for seizures, protecting the right to counsel, and restoring the fundamental principle of “innocent until proven guilty.”16 The last update on the bill was on December 12th, 2024, when it was read twice and referred to the Committee on the Judiciary.17 On the state level, four states–Maine, Nebraska, North Carolina, and New Mexico–have abolished the practice entirely, and many other states have introduced reforms, such as shifting the burden of proof onto the government instead of the property owner.18 All of these reforms are aimed at safeguarding civilians from unjust property seizure and making the practice of civil asset forfeiture better aligned with the protections of the Constitution.

IV. Constitutional Violations

Fourth Amendment Violations

Violating the Fourth Amendment, civil asset forfeiture infringes on the right to be secure from unreasonable seizures. The Fourth Amendment has been used to reinforce protections against abusive government power and secure individuals’ property rights. However, civil asset forfeiture violates these principles by allowing the often permanent seizure of property in instances where charges are never pressed, potentially indicating that there is insufficient evidence of wrongdoing. A report by the Georgia Advisory Committee to the U.S. Commission on Civil Rights reflected that they heard of many examples where mere proximity to criminal activity or the presence of cash was sufficient to prompt a civil forfeiture.19 They described these circumstances as “concerning in the context of this constitutional problem” of the Fourth Amendment, as there was not a reasonable motive behind the seizures.20 Law enforcement uses civil asset forfeiture as a tool to bypass Fourth Amendment rights and unjustly seize property for financial gain. If there were sufficient suspicion or evidence that a crime had occurred, criminal charges would be pressed against the property owner, making the subsequent forfeiture criminal instead of civil. As such, the absence of official charges highlights the nonsensical nature of the seizure and the lack of sufficient proof of illegal activity, violating protections against unreasonable seizure.

Eighth Amendment Violations

Civil asset forfeiture has also been connected to Eighth Amendment violations, specifically the Excessive Fines Clause, which protects people from fines that are too high or unfair as punishment for a crime. In Austin v. United States (1993),21 the Supreme Court ruled that the Eighth Amendment applied to civil asset forfeiture because the forfeiture served more than just a remedial purpose–it was also a punishment for the offense. Furthermore, the Excessive Fines Clause was incorporated at the state level under the Fourteenth Amendment per the unanimous Supreme Court decision in Timbs v. Indiana (2018),22 meaning the Austin ruling and its relation to civil asset forfeiture apply at both the state level and federal levels. The results of this case should enact protections against unjust seizures, which are considered punishments for an offense. Furthermore, for the more than 80% of individuals who have had their assets seized without being charged,23 the Excessive Fines Clause should prevent all property seizures, as there is no crime for which they are being punished. The forfeiture of their property would constitute a violation of their rights and an undue and excessive punishment. Following this logic, civil asset forfeiture should be abolished due to its violations of the Eighth Amendment and failure to safeguard civilians against unjust punishment.

Fourteenth Amendment Violations

Evidence surrounding civil forfeiture also points to Fourteenth Amendment violations, specifically the Equal Protection Clause. Protecting people from discrimination by the government, this clause has been used in several landmark cases to address unequal treatment towards certain groups. The Georgia Advisory Committee report found that civil asset forfeiture disproportionately impacts several protected classes under civil rights law, with particular concern for discrimination against lower-income individuals, people of color, immigrant communities, and unbanked individuals–who are primarily Latino or Black, lower-income, less educated, younger, and/or disabled.24 Resonating with this argument, the Southern Poverty Law Center describes forfeiture as more likely to affect economically disadvantaged communities.25 For example, Black and Hispanic motorists are disproportionately searched and, therefore, at greater risk of civil asset forfeiture due to racial profiling, even though they are not more likely to be found with narcotics.26 In light of these crucial discrepancies, the practice of civil asset forfeiture violates the Equal Protection Clause of the Fourteenth Amendment and disproportionately harms marginalized communities.

Due Process Violations

Civil asset forfeiture is also unconstitutional on procedural due process grounds. In Marshall v. Jerrico, Inc. (1980),27 the Supreme Court outlined constitutional restrictions that procedural due process places on “scheme[s] injecting a personal interest, financial or otherwise, into the [law] enforcement process.”28 The court identified three factors to consider when determining whether a law enforcement officer’s financial interest in enforcement violates the Constitution: whether they stand to economically profit from vigorous enforcement, whether they are financially dependent on maintaining a large quantity of penalties, and whether the agency’s budget is so reliant on this income stream that officers have direct financial incentives.29 As outlined below, civil forfeiture meets all of these factors, deeming it unconstitutional.

First, law enforcement departments financially benefit from civil forfeiture. The Department of Justice’s federal equitable sharing program allows state and local law enforcement agencies to retain up to 80% of the forfeiture proceeds from the seized property they turn over to the federal government, regardless of state law.30 The Washington Post reports that this money has funded luxury vehicles, high-tech equipment, travel, and even a clown named Sparkles.31 These purchases occur outside the set budget determined by elected officials, meaning they are subject to far fewer regulations, allowing them to make purchases that the public may find excessive or otherwise disagree with. Furthermore, the agency’s financial gain is directly proportional to the value of assets seized, incentivizing aggressive enforcement and thus fulfilling the first requirement outlined in Marshall.

Second, many jurisdictions have become financially dependent on civil forfeiture and the associated funding. A 2019 study found that fines and forfeitures are a “critical source of funding for the government,” making up more than 10% of general funding in roughly 600 jurisdictions across the country and exceeding 50% of general revenues in some communities.31 It should be noted that most governments report a broad category of “fines” or "fines and forfeiture” in their financial statements, so there is no available data on the specific breakdown of each of these factors.32 However, there is direct evidence of this overreliance. A 2001 survey of 770 agencies found that 40% of them considered funding from civil forfeiture “necessary.”33 Additionally, research conducted by the Institute of Justice found that a decline in the local economy and resulting budget constraints are strongly associated with an increase in forfeiture activity,34 demonstrating that officers respond to financial pressures to their agency’s financial health by making more seizures. Fulfilling the second requirement in Marshall, agencies’ dependence on civil asset forfeiture incentivizes them to make seizures and prevents reductions in forfeiture activity, as it would negatively impact their budgets.

Third, evidence has been found that proves civil forfeiture is used to pay salaries and bonuses for law enforcement officers. In Hunt County, Texas, forfeiture funds were allocated for personal bonuses of up to $26,000 per year.35 Additionally, in 2016, the Illinois State Attorney’s Office planned to use the expected $4.96 million in forfeiture funds to fund the salaries and benefits of 41 full-time employees.36 Budgeting an anticipated amount of nearly $5 million in forfeiture funds alone, the office is a prime example of agencies relying on the funds for their operations and, as a result, their employees being dependent on the seizure of private property for their livelihood. Even in jurisdictions where there is no direct funnel of forfeited profits into officers’ pockets, the reliance on forfeiture funds will likely strain the department budgets and indirectly influence financial incentives, impacting their incomes. This dependency gives officers a compelling motivation to exploit civil asset forfeitures, as they’d directly benefit from the associated funds.

Across these examples, civil forfeiture is proven to be a legally problematic scheme within the law enforcement process and a violation of due process rights, as noted by Marshall. It highlights the operational mechanisms that encourage the abuse of police power and reflect an overreliance on questionably obtained funds. This argument was used by the American Civil Liberties Union (ACLU) in Cox v. Voyles, et al.37 where federal Judge Humetewa ruled that the plaintiff’s “complaint sets out a plausible claim for violation of her due process rights in the enforcement of the Arizona forfeiture statutes because Defendants have a financial incentive to zealously enforce the forfeiture laws.”38 However, the plaintiff, Ms. Rhonda Cox, eventually withdrew her case due to financial constraints.39 As a result, this argument has yet to be officially tried in the court system. Still, Judge Humetewa’s remarks suggest that a future case could successfully challenge civil forfeiture on due process grounds, reinforcing its unconstitutionality.

V. Conclusion

Having diverged from its original purpose to target large-scale crime operations, civil asset forfeiture has degenerated into an unconstitutional practice that violates the Fourth, Eighth, and Fourteenth Amendments, as well as due process rights. Reforms to this practice, as suggested by the FAIR Act and other state-level reforms, mark crucial steps toward safeguarding civilians from law enforcement agencies abusing their power and prioritizing financial gains over public safety and individual rights.

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1 Sarah Stillman, “Taken,” New Yorker (12 August 2013), www.newyorker.com/magazine/2013/08/12/taken. 

2 “Asset Forfeiture | Federal Bureau of Investigation,” Federal Bureau of Investigation. www.fbi.gov/investigate/white-collar-crime/asset-forfeiture.

3 Criminal forfeiture, LII / Legal Information Institute, www.law.cornell.edu/wex/criminal_forfeiture.

4 Cornell Law School, Civil Forfeiture, LII Legal Information Institute (2017), www.law.cornell.edu/wex/civil_forfeiture. 

5 Ibid.

6 Ibid. 

7 H L Myers and J P Brzostowski, Drug Agents’ Guide to Forfeiture of Assets First Edition | Office of Justice Programs, OJP.gov (1981), www.ojp.gov/ncjrs/virtual-library/abstracts/drug-agents-guide-forfeiture-assets-first-edition.

8 Ibid. 

9 Lance Goto, History of Asset Forfeiture, ag.hawaii.gov, ag.haw, aii.gov/cjd/history-of-asset-forfeiture/.

10 Kyla Dunn, Special Reports - Reining In Forfeiture | Drug Wars | Frontline | PBS, www.pbs.org, www.pbs.org/wgbh/pages/frontline/shows/drugs/special/forfeiture.html.

11 Ibid.

12 Gurule Jimmy, Introduction: The Ancient Roots of Modern Forfeiture Law, (1995), scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1881&context=law_faculty_scholarship.

13 Cassie Miller, “Civil Asset Forfeiture: Unfair, Undemocratic, and Un-American,” Southern Poverty Law Center, (30 November 2024). www.splcenter.org/resources/reports/civil-asset-forfeiture-unfair-undemocratic-and-un-american/. 

14 Asset Forfeiture Abuse, American Civil Liberties Union, www.aclu.org/issues/criminal-law-reform/reforming-police/asset-forfeiture-abuse.

15 Cory Booker & Rand Paul, Fifth Amendment Integrity Restoration (FAIR) Act, (2024), www.booker.senate.gov/imo/media/doc/fair-act-2024-bill-text.pdf.

16 Booker, Paul Introduce Bipartisan FAIR Act to Reform Civil Forfeiture Laws, Protect Americans’ Rights | U.S. Senator Cory Booker of New Jersey, booker.senate.gov (2024), www.booker.senate.gov/news/press/booker-paul-introduce-bipartisan-fair-act-to-reform-civil-forfeiture-laws-protect-americans-rights. 

17 S.5512 - 118th Congress (2023-2024): FAIR Act of 2024, Congress.gov, www.congress.gov/bill/118th-congress/senate-bill/5512?q=%7B%22search%22%3A%22Fifth+Amendment+Integrity+Restoration+Act+of+2024%22%7D&s=6&r=1.

18 Brandon Haubert, Understanding Civil Forfeiture: Balancing Law Enforcement and Property Rights | WH Law, WH Law (2024), whlawoffices.com/blog/civil-forfeiture-and-property-rights/.

19 Georgia Advisory Committee To The U.S. Commission On Civil Rights, Civil Asset Forfeiture And Its Impact On Communities Of Color In Georgia, U.S. Commission On Civil Rights (2022), www.usccr.gov/files/2022-11/2022_civil-asset-forfeiture-in-ga_report.pdf.

20 Ibid.

21 Austin v. United States, 509 U.S. 602 (1993).

22 Timbs v. Indiana, 586 U.S. 371 (2019).  

23 Cox v. Voyles, No. 2:15-cv-01386-DJH, 2015 WL 7172436 (D. Ariz. Nov. 20, 2015).

24 Federal Court Allows ACLU Lawsuit Challenging Civil Asset Forfeiture to Proceed—A Win in the Fight Against Policing for Profit | American Civil Liberties Union, American Civil Liberties Union, (2017), www.aclu.org/press-releases/federal-court-allows-aclu-lawsuit-challenging-civil-asset-forfeiture-proceed-win. 

25 Ibid. 

26 Mike Maciag, Addicted to Fines: A Special Report, Governing (2019), www.governing.com/archive/fine-fee-revenues-special-report.html.

27 Ibid. 

28 Civil Asset Forfeiture, supra note 8. 

29  Brian Kelly, Fighting Crime or Raising Revenue?, Institute for Justice (2019), ij.org/report/fighting-crime-or-raising-revenue/.

30  Sarah Stillman, supra note 1.

31  Joel Handley, Jennifer Helsby & Freddy Martinez, Inside the Chicago Police Department’s secret budget, Chicago Reader (2016), chicagoreader.com/news/inside-the-chicago-police-departments-secret-budget/.