Perhaps sensing the wave of civil asset forfeiture reform might eventually come crashing against the seized beach houses of the federal government, the FBI has decided to post a defense of the oft-abused process at its website.
The post speaks in warm terms about federal partnerships with state law enforcement agencies -- partnerships often abused by local authorities to route around restrictive state laws governing forfeiture. Of course, there's no mention of this particular facet of federal partnerships in the FBI's post. Instead, the post does all it can to portray it as a legitimate tool of law enforcement, rather than the analogue for legalized theft it's become.
The FBI tries to spin this as a limited-use tool that only affects convicted criminals. But even in its defense of the process, it can't help but enthuse about the near lack of limitations it enjoys.
Many—though not all—federal crimes have forfeiture provisions, but just about every law the FBI is charged with enforcing has some forfeiture aspect—from organized crime activities, financial frauds, drug trafficking, and cyber crimes to public corruption, child pornography, human trafficking, and terrorism.
Not "Just For Drug Dealers™," as so often seems to be the case. All sorts of criminal acts -- even those committed with zero criminal intent -- can result in people (or their parents, relatives, roommates, etc.) losing their property to the government. How many laws allow for forfeiture? The FBI doesn't say, but it's probably in the thousands. Here's a recent federal criminal law count:
There are at least 5,000 federal criminal laws, with 10,000-300,000 regulations that can be enforced criminally.
"Many" is the word the FBI uses, so it's not just the rogue's gallery they trotted out in defense of the controversial process. It also can be owners of small restaurants or guitar manufacturers or whoever runs afoul of a few hundred thousand federal regulations.
But don't worry, says the Feeb, we have to do stuff to take stuff.
In all Bureau cases, the burden of proof to demonstrate that the property in question is forfeitable under the applicable federal law rests with the government.
This looks like it means the government has to prove the seized property is directly derived from criminal activity. But that's not what the sentence actually says. All the government has to prove is that the law provides for its forfeiture. Actually proving seized property is derived from criminal activity isn't something the government has to do. It only has to do this if the seizure is challenged. If it isn't, the normal boilerplate assertions about agents' information and belief are usually enough to net the government some extra spending money or fine auctionables.
The real fun begins when the FBI talks about civil forfeiture -- the process in which assets are treated as suspected criminals while the suspected criminals who own the property are sidelined by the legal process.
Civil forfeiture [...] is brought against property rather than the actual wrongdoer—it’s not dependent on a criminal prosecution, it’s based on the strength of the evidence at hand, it’s available whether the owner of the property is living or dead, and it allows us to obtain the assets of fugitives who have escaped the arm of the law or subjects who reside outside our borders.
This is law enforcement's favorite brand of forfeiture, as it eliminates tons of paperwork, arraignments, courtroom testimony, Fourth Amendment "technicalities" that spring suspected criminals, and dangerously unpredictable juries.
The most laughable part of this sentence is what the FBI claims civil forfeiture is used against -- fugitives and foreigners. In "many" cases (to borrow the FBI's vague term), the people assets are taken from are not only not fugitives or foreigners, they're also left uncharged and unjailed while their belongings begin the streamlined process of becoming government assets.
The FBI freely admits it engages in another form of parallel construction to better ensure the government ends up with something in every forfeiture case.
In some instances, the FBI—in conjunction with U.S. Attorney’s Office—will run parallel criminal and civil forfeiture cases. There are several reasons for this. Parallel proceedings help us get the proceeds of a crime back to the victims more quickly. Also, if the case involves depreciating assets (like cars), we can civilly forfeit those assets faster than in the criminal proceeding, then liquidate the assets and get them back to the victim at a better return than if we had held the assets until the criminal case was completed. We also do parallel cases to ensure we can forfeit the assets civilly in case the defendant flees or dies before the forfeiture order is handed down.
Handy. If the government can't get a conviction, it can still possibly take property from someone it couldn't prove was an actual criminal. By running them in parallel, defendants are left with almost no time to fight for the return of their property after they're exonerated.
And there's another laughable statement hidden in this paragraph: the notion that asset forfeiture has anything to do with "returning" the proceeds of criminal activity to victims. The FBI says it has returned $100 million over the last two years to crime victims. Sounds impressive, but that's only when presented without context, as the FBI does here. Scott Shackford of Reason provides some much-needed fiduciary bracketing:
In just 2014 the federal government deposited $5 billion in seized assets. That was just one year. So this $100 million in restitution over two years is a drop in the bucket compared to what they've taken. Most of the money is kept for themselves or shared with local law enforcement agencies.
The government's do-gooding only looks like do-gooding when deprived of context. The FBI -- and countless local law enforcement agencies now facing pushback from legislators and constituents -- wants to have it both ways: the power of Nottingham's sheriff but the public adoration of Robin Hood. It can't have both. And it has chosen for years to give into every base urge that civil asset forfeiture's perverted incentives have created. The public tide has turned against forfeiture, but the FBI -- waist-deep in water -- thinks it can keep everything under control by waving a badge and a "we're the good guys" grin.