It’s Time For Congress To End Federal Policing For Profit

Linda Martin’s money was taken from her security deposit box by the FBI. Cristal Starling’s cash was snatched from her home by Rochester, New York, police. Kermit Warren’s life savings were seized at an Ohio airport by DEA agents. None of these people were charged with a crime, but each of them had to fight the government to keep their money.

Today, there is real movement in Congress to end policing for profit by federal law enforcement and close a giant loophole that lets local law enforcement avoid state laws meant to protect property owners. The bill is called the Fifth Amendment Integrity Restoration (FAIR) Act, H.R. 1525, and it promises to end the perverse incentives that drive federal agents to spend so much of their valuable time seizing property rather than preventing or solving crimes.

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Few Americans know much about civil forfeiture, which doesn’t operate according to most people’s expectations. For example, in our criminal justice system, if you are charged with a crime, you are innocent until proven guilty. And you are provided an attorney if you can’t afford one. To convict you, the government must prove its case beyond a reasonable doubt.

But none of those things are true when the federal government tries to take property using civil forfeiture.

Linda Martin’s money ended up in the FBI’s hands after it raided the private security deposit box company that she thought would keep her savings safe. Even though only the company was charged with federal crimes, the government tried to take the property in every box with a value of more than $5,000, including Linda’s.

Linda was sent a notice of the forfeiture with options for getting her cash back that were cloaked in legalese. She ended up selecting an option that let the FBI determine for itself whether her money was connected to a crime and whether or not to give any of it back. Linda was then in the position of having to prove her own innocence in an administrative forfeiture process with no judge. But even though she provided ample evidence that her money was legitimate, the FBI held her money for two years with little communication. In March, she joined with the Institute for Justice (IJ) to sue to get her money back and to ensure that FBI provides proper notice to property owners.

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Cristal Starling found herself in federal court fighting for the money that Rochester police seized when they investigated her ex-boyfriend. Cristal herself was never charged and her ex was acquitted. Her money ended up in federal hands through the “equitable sharing” program. Here’s how it works: Local police departments across the country turn seized property over to federal law enforcement agencies for forfeiture. If the forfeiture is successful, the federal government “shares” up to 80% of the proceeds with the local police.

Because Cristal couldn’t afford an attorney, she missed an important legal deadline. Fighting forfeiture is a legal maze that can trip up even an experienced lawyer. IJ has taken up her case and asked an appeals court to let her continue contesting the forfeiture.

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Why is forfeiture so appealing to law enforcement? Federal forfeitures and equitable sharing dollars go into accounts controlled by law enforcement, not legislators. This means that government agencies and local police departments basically control slush funds totaling billions of dollars.

Some states require that at least some share of forfeiture proceeds go into the general treasury or into designated school or library funds. By participating in “equitable sharing” with the federal government, local police departments evade those requirements and use the money to buy items outside their normal budget approvals and oversight. As a result, body armor, semi-automatic rifles, night vision, and drones are frequent purchases.

The FAIR Act would curb many of the worst aspects of federal civil forfeiture. First, forfeiture proceeds would go into the U.S. Treasury’s general fund, not agency-controlled accounts. Second, the equitable sharing program would end, closing the loophole for state and local law enforcement. Third, forfeiture victims would get access to real courts with real judges. Rather than being processed administratively by the seizing agency, as happens in more than 90% of civil forfeiture cases today, all forfeitures would need to be approved by federal courts and indigent property owners would have access to counsel.

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One final story about what forfeiture reform would mean to Americans. Grandfather and church deacon Kermit Warren lost his shoe-shining job during the pandemic, so he decided he would use his life savings to take his part-time metal scrapping business full-time. To do that, he needed to buy a tow truck and he had a specific type in mind. He flew to Ohio with his cash to look at a truck but decided it wasn’t right.

Flying home to New Orleans, he was confronted by DEA agents at the airport. They took his money based on general suspicions about air travelers with cash, even though it is perfectly legal to travel domestically with any amount of money. But they never charged him with a crime. The seizure left him so destitute that he could not afford to buy Christmas presents for his grandchildren. Only after IJ announced a lawsuit on his behalf did Kermit get his money back. If Kermit had not found attorneys to represent him for free, he very well might have lost his life savings and the means to support himself during a difficult time.

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It is important for the government to be able to confiscate the proceeds of crimes. But it should have to first secure a criminal conviction of the owner. Instead, civil forfeiture ensnares and punishes innocent property owners, running roughshod over the Constitution’s protections. If the government wants to take someone for all they are worth, it should have to prove beyond a reasonable doubt that they committed a crime to justify such a punishment.