With This Forfeiture Trick, Innocent Owners Lose Even When They Win

Critics of civil forfeiture, the system of legalized theft that allows law enforcement agencies to seize people's property by alleging it is connected to criminal activity, often focus on the burden of proof the government faces when owners try to recover their assets. While those standards are obviously important, nearly nine out of 10 federal forfeiture cases never make it to court, largely because mounting a challenge often costs more than the property is worth. And while the Civil Asset Forfeiture Reform Act (CAFRA) allows owners who win in court to recover "reasonable attorney fees and other litigation costs," prosecutors can defeat that safeguard by dragging out cases and then dropping them before a judge decides whether forfeiture is legally justified. In the meantime, desperate owners may decide to let the government keep some of their property, even when they are completely innocent. From the government's perspective, there is no downside. "By gaming the system and denying property owners a 'win' in court," says Institute for Justice (I.J.) senior attorney Dan Alban, "federal prosecutors have found a way to short-circuit judicial oversight of their activities, while at the same time preserving their ability to continue to abuse Americans' property rights." I.J. is asking the U.S. Supreme Court to consider a case that takes aim at such sneaky tactics, arguing that an owner can "substantially prevail" in a forfeiture battle, as required by the CAFRA provision dealing with attorney fees, even if the government returns the property before it officially loses in court. "The threat of paying attorneys' fees is a critical check on government abuse," observes Justin Pearson, another I.J. senior attorney. "Otherwise, there is no disincentive to stop prosecutors from filing frivolous civil forfeitures against property belonging to innocent owners."...MORE