Guilty Until Proven Innocent: The Government's Legal License to Loot That Both Parties Have Been Too Cowardly to Kill
Guilty Until Proven Innocent: The Government's Legal License to Loot That Both Parties Have Been Too Cowardly to Kill
Imagine driving through a state you've never visited, carrying $10,000 in cash you've saved to purchase a used car. A police officer pulls you over for a minor traffic infraction. He asks about the cash. You explain. He is not satisfied. Under civil asset forfeiture law — operative in virtually every state and at the federal level — he can seize every dollar on the spot. You will not be arrested. You will not be charged with any crime. But getting your money back will require you to hire a lawyer, navigate a legal proceeding in which the property itself — not you — is technically the defendant, and prove, at your own expense, that your money was not connected to criminal activity. The government will keep it in the meantime. Many people simply give up.
This is not a hypothetical. Variations of this scenario have played out thousands of times across the United States. And it is entirely legal.
How the System Works — and Why It's Designed to Exploit
Civil asset forfeiture is legally distinct from criminal forfeiture, and that distinction is the source of its constitutional infamy. In a criminal forfeiture proceeding, the government must first convict a defendant of a crime before claiming their property. Civil forfeiture dispenses with that requirement entirely. The legal action is brought against the property — cases are literally titled things like United States v. $45,000 in U.S. Currency — and the owner's guilt or innocence is treated as largely beside the point.
The evidentiary standard in civil forfeiture cases is typically "preponderance of the evidence" — a far lower bar than the "beyond a reasonable doubt" standard required for criminal conviction. In many jurisdictions, the burden of proof is inverted: rather than the government proving the property is connected to crime, the owner must prove it is not. The Institute for Justice, which has litigated more civil forfeiture cases than any other organization in the country, documented in its comprehensive "Policing for Profit" report that law enforcement agencies at the state and federal level took in more than $68 billion through forfeiture between 2000 and 2019 — a figure that has grown steadily as agencies have come to rely on forfeiture revenue to fund operations.
That last point is not incidental. It is the structural rot at the center of the entire system. In most states, and under federal law, forfeiture proceeds flow directly back to the law enforcement agencies that initiate the seizures. The incentive this creates is not subtle: agencies that seize more property receive more funding. The government is, quite literally, policing for profit.
The Documented Abuses Are Not Anecdotal
Proponents of civil forfeiture invariably argue that abuses are rare and that the practice is an essential tool for dismantling drug trafficking organizations and organized crime. Both claims deserve scrutiny.
The Institute for Justice's research found that the majority of federal forfeiture cases involve amounts under $1,000 — hardly the profile of a drug cartel's operating capital. A 2015 investigation by The Washington Post found that since 2001, police had seized more than $2.5 billion in cash from people who were never charged with a crime under a federal forfeiture program called Equitable Sharing, which allows local agencies to partner with federal law enforcement to bypass more restrictive state forfeiture laws. The median seizure in the cases examined was $8,800.
The cases that have attracted the most attention are not aberrations. Russ Caswell of Tewksbury, Massachusetts, nearly lost his family's motel — operated for decades without incident — because federal prosecutors argued that drug transactions had occurred on the premises over a 14-year period, even though Caswell himself had cooperated with every police investigation and was never accused of wrongdoing. Joseph Rivers, a young man from Michigan, had $16,000 seized by DEA agents on an Amtrak train in New Mexico — money he had saved to pursue a music career in Los Angeles. He was never charged with anything. He never got his money back.
These are not edge cases manufactured by civil liberties organizations for maximum rhetorical effect. They are representative of a system that has built perverse incentives into the structure of law enforcement itself.
Where Conservatives Have Gone Wrong — and Why It Matters
For too long, the default conservative position on civil asset forfeiture has been reflexive deference to law enforcement, on the theory that any tool that helps police fight crime deserves support. This is a fundamental misapplication of conservative principle, and it has left the issue largely to libertarians and the left — a political abdication with real consequences for real Americans.
The conservative tradition in America is not, and never has been, one of uncritical deference to government power simply because that power is exercised by agents wearing badges rather than suits. The Fifth Amendment's guarantee that no person shall be "deprived of life, liberty, or property, without due process of law" does not contain a law enforcement exception. The Fourth Amendment's protection against unreasonable seizures is not suspended when the seizing party is a police officer rather than a bureaucrat. The presumption of innocence — the foundational principle of Anglo-American jurisprudence stretching back to English common law — does not evaporate when the government decides to proceed against property rather than person.
Conservatives who would rightly recoil at an EPA bureaucrat seizing a farmer's land on the basis of an administrative determination should apply the same principles to a sheriff's deputy seizing a motorist's cash on the basis of a hunch. The constitutional principle is identical. The political instinct, too often, is not.
It is also worth noting that civil forfeiture does not primarily target the wealthy. Wealthy defendants have the resources to hire attorneys and fight back. Civil forfeiture preys disproportionately on working-class and middle-class Americans who cannot afford the legal fees required to reclaim property that may be worth less than the cost of the fight. This is not the profile of a system targeting drug kingpins. It is the profile of a system that has learned to exploit the most financially vulnerable people it encounters.
The Reform Agenda
The good news is that a meaningful reform agenda is not complicated, and it has attracted support from across the ideological spectrum — from the ACLU to the Cato Institute, from progressive prosecutors to conservative state legislators.
The core reforms are straightforward: require a criminal conviction before property can be permanently forfeited; shift the burden of proof to the government in all civil proceedings; eliminate the direct funding link between seizures and agency budgets by directing forfeiture proceeds to general funds rather than law enforcement coffers; close the federal Equitable Sharing loophole that allows agencies to circumvent stricter state laws; and establish clear, accessible processes for contesting seizures without requiring property owners to navigate complex federal court proceedings.
Nearly a dozen states have already enacted meaningful reforms along these lines. New Mexico eliminated civil forfeiture entirely in 2015, requiring a criminal conviction before property can be forfeited. North Carolina has prohibited the practice for most offenses. The sky has not fallen in these states, and law enforcement has not collapsed. What has happened is that a significant avenue for constitutional abuse has been closed.
The federal government has been slower to act. Congress has considered reform legislation repeatedly, and repeatedly failed to move it across the finish line, largely because of resistance from the Department of Justice — which is itself a major beneficiary of forfeiture revenue. That institutional resistance should be recognized for what it is: an agency protecting its revenue stream at the expense of the constitutional rights of American citizens.
The Verdict
Civil asset forfeiture is not a law enforcement tool that has been occasionally misused. It is a structural inversion of due process that has been occasionally used for legitimate purposes. The distinction matters. A system that is fundamentally unjust does not become acceptable because it sometimes produces just outcomes.
Conservatives who believe in constitutional government, individual liberty, and the rule of law — rather than merely the rule of law enforcement — should be leading the charge for abolition, not defending a practice that would have struck the Founders as a general warrant issued against property rather than persons.
A government that can take your property without convicting you of a crime has not solved the problem of lawlessness — it has institutionalized it.
