Civil Asset Forfeiture Lets Government Keep Property Without a Conviction

Your car has been charged with a crime. Its attorney will be with you shortly. This is not a joke, or not only a joke: it is how some federal and state forfeiture cases are captioned. The government sues the property itself, in a case styled something like United States v. One 2004 Truck, and the truck, which has no lawyer and cannot testify, is the defendant. The owner, a person with rights, appears as a third party who has to come into court and ask for his property back.

That is the strange legal creature known as civil asset forfeiture. It is one of the few areas of American law in which conservatives who love the police and conservatives who love private property find themselves staring across the table at each other, each holding a copy of the Constitution. Let us define it, trace it, test it and then say where the line should be drawn.

Define the terms

Forfeiture is the government's taking of property because of its connection to a crime. There are three forms, and keeping them straight is half the battle.

1. Criminal forfeiture is part of a criminal case against a person. The government must convict the defendant, and the court then orders the forfeiture of property connected to the offense as part of the sentence. The owner is the defendant, and he has all the rights of a criminal defendant, including proof beyond a reasonable doubt.
2. Civil judicial forfeiture is a lawsuit against the property, not the person. The legal theory is in rem, Latin for "against the thing." The government must prove that the property is connected to a crime, to a standard that is lower than in a criminal trial, and no one need be convicted, or even charged, for the property to be forfeited.
3. Administrative forfeiture is a process in which the seizing agency takes the property and, if no one files a timely claim, forfeits it without a judge ever being involved. Many forfeitures, especially of lower-value property, happen this way.

The target of this post is the second and third forms, which separate the taking of property from any finding of guilt.

The old roots: ships, pirates and customs

The idea is older than the Republic. English law long recognized forms of forfeiture. The American version grew out of admiralty and customs law. In the early republic, the government needed a way to deal with pirate ships, smuggling vessels and ships that evaded the customs duties that financed the federal government. A ship's owner might be overseas, out of reach or unknown, but the ship was sitting in the harbor. The courts allowed the government to proceed against the vessel itself. In The Palmyra (1827), Justice Joseph Story explained the theory: the vessel was treated as the offender, and the proceeding against it was independent of any criminal prosecution of the owner.

The legal fiction served a practical purpose. For two centuries the doctrine was used in narrow areas: customs violations, smuggling, the seizure of contraband and vessels used in piracy. The classic cases often involved property that was itself illegal, or owners who were outside the reach of the courts. The notion that the government might seize a family's ordinary car or house, with an owner who is local and available for prosecution but never charged, is a much more modern development.

The 1984 turn: a profit motive arrives

The modern expansion began with the war on drugs. The Comprehensive Crime Control Act of 1984, signed in October of that year, broadened federal forfeiture dramatically, and two features deserve attention.

First, it created a Justice Department fund into which forfeited proceeds could be deposited and from which they could be spent on law enforcement purposes. For the first time, agencies that seized property could keep, or share in, the proceeds. This was meant to turn the drug trade's profits against it, a goal that is easy to defend: if a trafficker has built a fortune from poison, the government should be able to take the fortune.

Second, it authorized equitable sharing, a program under which state and local police who participate in a federal investigation, or who turn a seizure over to federal authorities, may receive a portion of the proceeds. Equitable sharing has been criticized because it gives local departments a way around their own state's restrictions: if a state law makes forfeiture hard, a local officer can hand the case to a federal agency and receive a share of the take. The rules have been modified over the years, but the structural incentive remains: the agency that seizes the property has a financial interest in the result.

I want to be fair here. Law enforcement agencies will say, and with some justice, that forfeiture revenue funds drug task forces, equipment and training that a tight budget would not otherwise cover. That is true. It is also the problem in a sentence. In a constitutional system, the budget of a police department is supposed to come from the legislature, so the elected representatives who vote the money can be held to account for how it is spent. Revenue that an agency collects by seizing property and spends itself bypasses that check.

The 2000 reform

Public criticism of forfeiture grew through the 1990s, and in 2000 Congress passed the Civil Asset Forfeiture Reform Act, known as CAFRA, with bipartisan support. It was an important reform, and it is worth knowing what it changed in federal civil forfeiture.

• It placed the burden of proof on the government, which must prove by a preponderance of the evidence that the property is subject to forfeiture. Before CAFRA, the balance tilted heavily in the government's favor, and the change was a real shift in who had to prove what.
• It created a federal innocent owner defense, so that an owner who did not know of the illegal conduct, or who did all that could reasonably be expected to stop it, can keep his property.
• It provided for appointed counsel for some indigent property owners.

Notice what CAFRA did not do. It did not require a conviction. The government can still forfeit property without charging the owner, as long as it proves the connection by a preponderance of the evidence. That is a lower standard than in a criminal case, and it is the core of the continuing dispute.

The cases: what the Supreme Court has said

The Court has addressed forfeiture in several decisions, and they show the tension in the law.

Bennis v. Michigan (1996). Tina Bennis co-owned a car with her husband. He used it to meet a prostitute, and Michigan forfeited the car. She argued that she was innocent and that forfeiting her half-interest took her property without due process and without just compensation. The Court, by a 5-4 vote in an opinion by Chief Justice Rehnquist, rejected her claim, holding that an innocent owner's property may be forfeited consistent with the Constitution. It was a hard result, and it is the case most often cited by critics as proof that the old doctrine could reach people who had done nothing wrong. Congress later gave federal civil forfeiture an innocent owner defense, and many states have done the same, but the Constitution itself, under Bennis, did not require it.

Austin v. United States (1993) and United States v. Bajakajian (1998). These cases brought the Eighth Amendment into the picture. The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In Austin, the Court held that civil forfeiture can be subject to the Excessive Fines Clause when it is at least partly punitive. In Bajakajian, the Court held that the forfeiture of $357,144 from a man who had failed to report that he was carrying the cash out of the country was grossly disproportional to his offense, which was a reporting violation, and therefore unconstitutional. The principle is that forfeiture is not exempt from proportionality.

Timbs v. Indiana (2019). Tyson Timbs pleaded guilty to dealing in a controlled substance and conspiracy to commit theft. The maximum fine for his offense was $10,000. Indiana sought to forfeit his Land Rover, which he had bought with proceeds from his father's life insurance policy, and which was worth about $42,000. The Supreme Court held, unanimously, in an opinion by Justice Ginsburg, that the Eighth Amendment's Excessive Fines Clause is "incorporated" through the Fourteenth Amendment and so applies to state and local governments. The Court sent the case back for the Indiana courts to decide whether this particular forfeiture was excessive. The ruling is a recognition that the Founders regarded fines, and the fear that government would use them to raise revenue or to punish disproportionately, as a serious danger. The English Bill of Rights of 1689, which the Eighth Amendment echoes, included a ban on excessive fines for that reason.

A Justice's doubts. In 2017, in Leonard v. Texas, Justice Clarence Thomas wrote a statement respecting the denial of review in which he questioned whether modern civil forfeiture practices could be squared with the Constitution's due process guarantees, noting that the doctrine's historical justification was narrower than its modern use. In 2024, in Culley v. Marshall, the Court held by a vote of 6 to 3 that due process does not require a separate preliminary hearing, beyond the final forfeiture hearing, to decide whether property can be retained while the case is pending. The law is therefore unsettled at the edges, and some of the most important questions remain open.

The steelman for forfeiture

Let us state the law-enforcement case as its best defenders would, because it is not a weak case.

1. It takes the profit out of crime. A criminal organization is a business. A prosecutor who sends a trafficker to prison but leaves the money and the fleet of vehicles intact has left the business open. Forfeiture goes after the thing a criminal values most.
2. It reaches those beyond the reach of a criminal case. A defendant may flee, die, be located abroad or be beyond the prosecution's evidence while the proceeds are sitting in a local bank account. A criminal case needs a defendant. A civil case needs only the property.
3. It funds the fight. Seized assets help pay for the agencies that pursue crime and, in some programs, go to victim restitution.
4. The standard has teeth. After CAFRA, the government must prove the connection, an owner can invoke the innocent owner defense and the Excessive Fines Clause caps the punishment. The system is not as lawless as critics say.

All of that is true. Forfeiture, used against a drug cartel's proceeds, is a serious tool that the public has every reason to want used.

The steelman against: property rights and due process

Now the other side, in numbered points.

1. The Fifth Amendment says no one shall "be deprived of life, liberty, or property, without due process of law." In ordinary American law, the government takes a person's liberty or property only after it has proved guilt in a court. Forfeiture without a conviction reverses the order: the government takes first, and the owner must act, at his own expense, to get the property back. Many owners find that the cost of a lawyer exceeds the value of the property, and give up. That is a feature of the system, not an accident, in the sense that it is predictable and the agency benefits from it.
2. The standard is lower than the stakes demand. A preponderance of the evidence means "more likely than not." That is the standard we use to decide a contract dispute. It is the wrong standard for taking a family's car or a small business's cash.
3. The incentive is crooked. When an agency keeps what it seizes, it has a financial interest in seizing. Even honest officers work in a system that rewards the taking of property. A conservative who understands incentives should not be surprised when a system that pays for seizures produces more of them.
4. Property rights are not a footnote. John Locke, whom the Founders read as closely as any author, grounded government in the protection of "lives, liberties and estates." The Fifth Amendment protects property alongside liberty, and a government that takes property on a mere preponderance, from people never convicted of anything, has weakened one of the foundations of the order it exists to protect.
5. The innocent and the poor are least able to fight. A wealthy person can hire counsel. A cash-paid worker whose savings were seized at a roadside, or a family whose car was taken, is in a different position. We discussed what citizens should know about their rights during a stop in Can Police Search My Car? Eleven Questions About Traffic Stops Answered.

The state reforms

The states have been the laboratories here, and the results are instructive. Several states have moved toward requiring a criminal conviction before most property can be forfeited. North Carolina has long been described as a state that largely lacks civil forfeiture. New Mexico abolished civil forfeiture in 2015, and the legislature barred law enforcement from keeping forfeiture proceeds. Nebraska followed in 2016. Other states have raised the burden of proof, to clear and convincing evidence, restricted or ended equitable sharing, required that proceeds go to the general fund rather than to the seizing agency, or mandated public reporting.

What do the states that reformed tell us? Not that forfeiture disappeared. The criminal forfeiture process remains, and prosecutors continue to take the profits of crime after convictions. The reforms have drawn objections from some law enforcement groups, who warn about lost revenue and weaker leverage, and they have drawn praise from groups across the political spectrum, including some that are ordinarily at odds. The fights in statehouses, in which sheriffs and property-rights groups often sit on opposite sides, show how this issue scrambles the usual map. A reader who wants to know what his own state requires should read his state's forfeiture statute, which is usually only a few pages.

Where the line should be drawn

My view is that the line follows the principle that the Founders wrote into the Fifth and Eighth Amendments: you take a man's property after you prove he did wrong, not before. I would keep forfeiture strong where it is most defensible: after a criminal conviction, against the proceeds and instruments of serious crime, and in cases where the owner is truly beyond the court's reach. I would require a conviction, or at the very least clear and convincing evidence and a prompt hearing, before civil forfeiture of ordinary property of a person who has not been charged. I would end the practice of letting the seizing agency keep the proceeds, and send them to the general fund so that legislators control the budget. And I would require a short, public annual report on what was seized, from whom and with what result.

That is not hostility to police. It is the best way to keep the public's trust in them. A department that cannot be accused of seizing property to fund itself is a department that can ask citizens for cooperation without suspicion. It is also the position that a limited-government conservative, who believes that power should answer to the legislature and the courts, should find natural.

Related reading

For the way prosecutors' choices shape outcomes, see Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them. For another place where a lower standard meets heavy stakes, see Excessive Bail Shall Not Be Required, and What the Founders Meant by It, which examines the same Eighth Amendment clause that sits next to the one in Timbs. For a Founding-era look at where the line between the state and the citizen's property sits, see our Constitution page.

The case in brief

1. Civil forfeiture lets government sue property, not a person, and take it without a conviction, a doctrine that grew from admiralty and customs law and expanded sharply after the Comprehensive Crime Control Act of 1984 and its sharing of proceeds.
2. The Civil Asset Forfeiture Reform Act of 2000 put the burden on the government and created an innocent owner defense, but it kept forfeiture without a conviction, on a preponderance standard.
3. The Supreme Court allowed forfeiture from an innocent co-owner in Bennis v. Michigan (1996), but held in Bajakajian (1998) that forfeiture must be proportional and in Timbs v. Indiana (2019) that the Excessive Fines Clause binds the states.
4. Supporters say forfeiture takes the profit out of crime and reaches defendants beyond the courts; critics say it reverses due process, uses a low standard and rewards the agencies that seize.
5. A conservative line is to forfeit strongly after conviction, require stronger proof and a prompt hearing otherwise, send proceeds to the general fund and publish what is taken.

What you can do: read your state's forfeiture statute and your local police department's annual forfeiture report, if one exists, and ask your legislator whether proceeds go to the seizing agency or to the general fund.