This op-ed was originally published at The Hill on February 22, 2017.
Russ Caswell’s experience with civil asset forfeiture was “nothing more than an extortion plot.” The Tewksbury Police Department seized Motel Caswell, which his father built in 1955, because the property allegedly had a “substantial connection” to drug activity.
Civil asset forfeiture is the process through which law enforcement can seize property suspected of being connected to criminal activity. While law enforcement insists the forfeiture is a means to go after the profits of illicit activity, including the drug trade, there are many examples of misguided law enforcement permanently seizing the property of innocent people like Russ Caswell or simply going after money rather than drugs.
The owner of the property seized by law enforcement doesn’t have to be arrested or convicted of a crime — or even charged with a crime. Forfeiture also brings with it a legal fiction, as court proceedings are brought against the property, not the property owner. This is why forfeiture cases come with unusual case names such as United States v. $124,700 in U.S. Currency, United States v. Approximately 64,695 Pounds of Shark Fins, and Texas v. One Gold Crucifix.
According to the Institute for Justice, thirty-one states require prosecutors to show only a preponderance of the evidence, or a fifty-one percent likelihood that property is connected to illicit activity, to subject property to forfeiture. Basically, it’s a coin flip. Thirty-five states and the federal government put the burden of proof in forfeiture proceedings on the property owner, denying American citizens their constitutionally-guaranteed rights to due process and the presumption of innocence.
Sadly, Caswell learned about this experience first-hand.
In September 2009, the Tewksbury Police Department began the forfeiture proceeding against Motel Caswell because it had supposedly facilitated drug activity. The property, which the local police department had used for free for stakeouts, also happened to be paid off and worth more than surrounding properties.
“I have never been charged with or convicted of a crime my entire life. No one in my family, or
any of our employees, has ever been involved in a crime at the Motel concerning drugs,” Caswell said during an April 2015 Senate Judiciary Committee hearing on civil asset forfeiture. “To us, the forfeiture case seemed ludicrous.
“Over the course of twenty years, we rented out more than 125,000 rooms to guests. The government’s lawsuit identified 15 arrests over that period as the basis for their forfeiture—15 arrests out of 125,000 rooms,” Caswell added.
Caswell and his wife were beginning to plan their retirement when the Tewksbury Police Department initiated the forfeiture proceeding against the motel. He described it as “a living nightmare,” one that forced him to borrow $60,000 to fight over three years.
He was defending his property, our most basic economic liberty, and his right to due process, one of the most basic constitutionally-protected civil liberties. He was also fighting for his nest egg, which the Tewksbury Police Department, working in coordination with Uncle Sam, threatened to take away.
With the help of the Institute for Justice in January 2013, Caswell won the case, with a court ruling that he was an innocent owner. Still, he has continued to fight for forfeiture reform. “Unfortunately, not everyone can have their case rescued by a group willing to represent them free of charge,” he said. “Too many Americans are being swept up by civil forfeiture, with no means to defend themselves.” This is why he calls forfeiture “legalized theft.”
Recognizing the threat that civil asset forfeiture represents to small business owners, the National Federation of Independent Business has supported protective forfeiture reforms that passed in state legislatures, including Florida and Michigan. The NFIB has also supported reforms at the federal level that increase the evidentiary standard to clear and convincing, the highest standard in civil court, and shift the burden of proof to the government, where it belongs.
There is also overwhelming public support for forfeiture reform. An October 2014 Rasmussen survey found that 70 percent of adults believe that a criminal conviction should be required before law enforcement seizes property believed to be connected to a crime. It’s worth noting that 72 percent of Republicans shared this belief.
A September 2015 YouGov survey found that 71 percent of adults, including 77 percent of Republicans, believe forfeiture should be allowed only if the person whose goods are seized has been convicted of a crime. Only 7 percent believe forfeiture should be allowed without a criminal conviction.
State surveys typically show stronger support than national surveys. In Ohio, for example, where legislation was recently signed into law to require a criminal conviction before law enforcement can take permanent possession of seized property, a survey found that 81 percent of registered voters said that the Buckeye State’s forfeiture laws needed reform. That figure increased to 90 percent after a brief explanation of both sides of the argument.
Civil asset forfeiture reform is mostly a bipartisan issue, but the biggest champions of reform are some of the most conservative lawmakers in the country, including Sen. Rand Paul (R-Ky.), Sen. Mike Lee (R-Utah), Rep. Justin Amash (R-Mich.), and Rep. Tim Walberg (R-Mich.).
The efforts to reform civil asset forfeiture laws in Congress and state legislatures aren’t going away. Conservatives who believe in due process and private property rights should support lawmakers who are working to uphold these constitutional values.
Jason Pye is director of public policy and legislative affairs for FreedomWorks, a Washington, D.C. non-profit that advocates for limited government.