Due to the fantastic post by @siggy47 from earlier today (here it is #518032), I started to do a deep dive into the history and absolutely mind-blowing issues with civil asset forfeiture. The more that I read the more I realized I wanted to put everything I found into a post for people but for the great topic, I am forwarding @siggy47 half of the sats this post generates (I have never done this before so Siggy if you could let me know if I did it right ad appreciate it lol)!
As a ton of people in the comments were talking about it is honestly amazing that this move by the government has not previously been deemed unconstitutional. Digging into the history of it has highlighted how much it has changed from its origins. Civil forfeiture is a holdover from the colonial era and initially, the US used it to make sure that people paid their customs taxes on goods. When this was appealed to the Supreme Court they upheld the forfeitures in part due to these issues concerning shipping and not being able to get an offender when they were out on the seas. Supreme Court Justice Joseph Story stated:
" [a] vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. [The seizure of the ship is justified by] the necessity of the case, as the only adequate means of suppressing the offense or wrong, or insuring an indemnity to the injured party.
Realistically though this law was hardly ever used until the 1920s during Prohibition. Police at this time seized vehicles, equipment, cash, etc. from bootleggers as part of the effort to combat the criminal activity occurring at the time. Once Prohibition ended once again the usage of this type of enforcement dwindled as well.
So what changed?
In 1984 the Comprehensive Crime Control Act of 1984 was passed and signed into law. I say this with the utmost sarcasm as this special piece of legislation should just be renamed "the bill that just keeps on giving" as it has done more damage and caused more societal issues than anything else in the modern era. Passed during the ramp-up of the now infamous War on Drugs civil forfeiture was revised and revamped to target the ~$12 billion a year drug market. As we all know "War" went about as well as bathing a cat. These forfeitures were supposed to finance the prisons that the drug dealers would be sitting in according to people who worked on the law at the time.
However, it quickly spread to other things and was used by various cities and states to try and combat certain things. New York City was one of the big players in using it in a new way and that was to combat drunk driving by confiscating the vehicle of someone caught drunk driving. Between 1985 - 1993 $3 billion in cash and other assets were forfeited from criminals. This rise naturally leads to more lawsuits against these forfeitures leading to three important Supreme Court Cases (@Murch here is the answer to your question in the earlier post)
- Austin v. United States - upheld the general ideal of civil forfeiture
- United States v. Ursery - forfeiture while also being prosecuted for a crime does not result in double jeopardy
- Bennis v. Michigan - held that the “innocent owner” defense was not constitutionally mandated by the Fourteenth Amendment’s Due Process Clause in cases of civil forfeiture
Not to be outdone by the judicial system the legislative branch has also helped supercharge this by increasing the number of federal statutes that permit this from ~200 to ~400. When there was public outcry about this in the late 1990s Congress did pass legislation to reel in the judicial branch by raising the threshold and other things. Once the outcry died down though many of the things that they passed to address this were undone without the public catching on (@StillStackinAfterAllTheseYears this points to exactly what you were discussing. The US Marshalls shared $606 million with participating state and local law enforcement in FY 2023). That is not to say that the issue has gone away or been forgotten about by some Members of Congress. When I was first looking into this the first article I stumbled across came from a Member of the House of Representatives. Representative Tim Walberg (MI-5) highlighted the issue in a press release from last August. While the source he used isn't the best (epoch times has an image issue) what he shared is very true!
There was also a second thing that I think was as if not more important I found. The Congressional Testimony from a GAO (Government Accountability Office) during a 1996 hearing. It was reading this testimony that I finally found what I think all of us knew was likely the case.
1."In January 1990, the Comptroller General identified seized and forfeited assets as a high-risk area because it had been characterized by mismanagement and internal control weaknesses." 2. "In March 1993, the Justice Office of Inspector General (OIG) reported mismanagement by contractors hired by the Marshals Service to maintain and dispose of property, resulting in excessive costs and lost revenues of almost $2.8 million in six districts reviewed by the OIG. The OIG reported that $2.5 million of the excessive costs and lost revenue resulted from a lack of effective Marshals Service oversight of real property management contracts." 3. "As asset forfeiture programs grew in the 1980s, we found that property was not being properly cared for after it was seized, which resulted in lost revenue to the government when the property was sold."
Now that is just from the first page and a half of the testimony. Already right there you are seeing that even way back in 1990 this very program was identified by watchdogs as a problematic office. Even though this is obviously out of date it isn't crazy to think that stuff has not improved for the two different departments involved. After all the assets they had in 1990 was just a few billion dollars were as now the US Marshal alone have almost $4 billion in assets on hand alone. I just wanted to throw this post together for everyone to be able to really look into the issue and be able to see the data behind it. This is a problematic program. It has been for a long time and without action will continue to snowball into a larger and larger problem.