Quantcast
Home / Commentary / ON THE DEFENSIVE: Civil forfeiture lucrative but open to abuse

ON THE DEFENSIVE: Civil forfeiture lucrative but open to abuse

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and served two terms on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

U.S. Attorney General Eric Holder recently announced the immediate termination of “equitable sharing,” a civil-asset forfeiture program run by the U.S. Department of Justice.

The Milwaukee Police Department and other Wisconsin police agencies had been heavy users of the arrangement. Equitable sharing let law enforcement officers seize the assets of any person, on behalf of the federal government.

Once the assets were seized, the U.S. Attorney’s Office would handle the forfeiture proceedings. The proceeds then would be split between the federal government and the agency that seized the assets.

The Washington Post recently reported that the local police agency sometimes would receive up to 80 percent of the seizure. Given the potential payout a department could receive, civil forfeiture became an attractive source of revenue.

In practice, law enforcement officers would seize cash uncovered during routine traffic stops. There was no requirement that the cash be linked to any specific illegal activity and no requirement that the individual in possession of the cash or asset be charged with a crime.

The person whose money or asset was seized then had the burden of proof to demonstrate to a court’s satisfaction that the money was derived from lawful means.

For police, asset seizure presented little downside or risk.

First, the forfeiture action usually was handled by a highly trained federal prosecutor who specializes in such matters. That placed no additional burden on the local district attorney’s office.

Second, given the uncertainty that a person would recover the full value, most people opted to settle, thereby ensuring that something would be funneled to law enforcement. Because most people settled, the officers rarely had to testify or otherwise justify the seizure.

Third, many people simply defaulted on the challenge because the cost of hiring a lawyer, and the uncertainty of recovery, made litigation financially risky.

Holder was right to eliminate the arrangement, given the serious potential for abuse that existed. Too many law-abiding people faced the real risk that they would be deprived of money or assets based on the hunch of an investigating officer.

With the elimination of the practice, law enforcement still can seize the assets of drug dealers. However, now the police and prosecutors must rely almost exclusively on state law to handle those forfeitures.

The downside to law enforcement is that it loses out on the generous sharing arrangements with the federal government. But for the average law-abiding citizen, it is a positive development.

Questionable seizures likely will diminish now that the financial incentives for the police have diminished.

Leave a Comment