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Labeled legalized theft by critics, civil asset forfeiture has a long, problematic history in the U.S., says a Northeastern criminologist.
Like its protagonist, “Rebel Ridge” is equal parts brain and brawn. A new action thriller from director Jeremy Saulnier that quickly hit the No. 1 spot on Netflix, the movie has plenty of bullets and fistfights. However, at the center is also an unlikely –– and timely –– idea that gives it Rambo with a New Yorker subscription energy.
The setup is simple. Terry Richmond is riding his bike to a local jail with $10,000 in cash to bail out his cousin. He’s run off the road by local cops who take the money –– and realize far too late that they’ve messed with the wrong man.
What follows is both a slowly building potboiler of an action movie and an examination of civil asset forfeiture, a law enforcement practice with a long, problematic history.
As strange and frustrating as it might seem that police can just take Terry’s money without charging him with a crime, the situation is far more common –– and realistic –– than you might think, says Nikos Passas, a professor of criminology and criminal justice at Northeastern University.
“It’s a legal process enabling law enforcement agencies to seize property which is suspected of having connections to criminal activity,” Passas says. “The difference between criminal and civil forfeiture is that the criminal one requires a conviction. A civil forfeiture targets the property itself, and often it is done without charging the owner with wrongdoing.”
There’s a reason critics have called it legalized theft. As reported by the New Yorker, civil asset forfeiture, although originally intended to target criminals, has long been abused as a tactic. As depicted in “Rebel Ridge,” the worst version of civil asset forfeiture amounts to policing for profit, especially for local police departments in jurisdictions where budgets are tight.
Since the 1980s, police have been authorized to keep the property and cash they seize, which can in turn be funneled back into their operations. Civil asset forfeiture is big business. In 1985, the U.S. Department of Justice brought in $27 million. More recently, in 2022, that number skyrocketed to $1.3 billion in civil asset forfeitures.
Because the lawsuit is filed directly against the property, not the person whose property has been seized, it can be exceedingly time-consuming and costly for people to get their property back, Passas says.
“It gives people discretion, and discretion can be abused and discretion has been apparently abused in cases that lead multiple states to enact reforms to curb those abuses and introduce more transparency,” Passas says.
In “Rebel Ridge,” the police tell Terry that if he gives up his cash, he can walk away without being charged with a crime. These “cash-for-freedom deals” are a real tactic used by police in some jurisdictions, according to the New Yorker.
The practice also creates a bizarre situation where an inanimate object without civil rights and the ability to argue its case in court is the defendant in the case. As a result, civil asset forfeiture cases come with strange names, like the United States v. One Pearl Necklace or States of Texas v. $6,037.
As a practice, civil asset forfeiture has a long history that goes all the way back to the country’s founding. It was originally used in British maritime law to combat piracy and was later adopted for the same purpose by the newly formed U.S. Congress. However, its more modern use really began in the 1970s and 1980s with the federal government’s war against organized crime and drugs.
“There was [the Comprehensive Crime Control Act] in the ’80s that expanded the government’s powers to engage in forfeiture,” Passas says. “It established a Department of Justice assets forfeiture fund, and it allowed law enforcement agencies to keep the proceeds from forfeitures, thereby creating a financial incentive to go after cases with assets.”
The intent, Passas explains, was to “hit crime for profit where it hurts: their pockets.”
Proponents of the practice say in cases where criminal activity is suspected but hard to prove, as is the case in organized crime, Passas says, it’s an invaluable tool for law enforcement. The burden of proof needed to seize property is much lower, so police can take action more quickly. It’s how federal agents were able to seize Columbian drug kingpin Pablo Escobar’s 400-acre Montana ranch.
However, the amount of discretion it gives law enforcement has been heavily criticized and repeatedly labeled legalized theft by its staunchest critics. It also remains deeply unpopular with the American public. Multiple polls have shown that the majority of Americans oppose the practice.
“The argument against is that in practice it violates constitutional rights, including protection against unreasonable searches and sources, that’s the Fourth Amendment, and the Fifth Amendment, the right to due process,” Passas says. “The concern, essentially, is that by giving a profit motive, a financial motive, to law enforcement it introduces a bias.”
Despite its origins, civil asset forfeiture is often not used to target criminals. More often than not the people targeted by police are reportedly never charged with crimes. The victims, who are often lower income or with questionable immigration status, according to the New Yorker, are less likely, or unable, to pay for a lawyer or jump through the bureaucratic hoops needed to get their property back.
In the last decade, federal and state lawmakers have taken some steps to curb abuses of civil asset forfeiture.
The Civil Asset Forfeiture Reform Act, signed into law in 2000, aimed to create a general, and supposedly more fair, set of federal procedures for civil asset forfeiture. Thirty-seven states have also pursued civil asset forfeiture reforms, including 16 that now require a criminal conviction before property can be seized. Three states –– Maine, New Mexico and North Carolina –– have outright banned the practice and now only allow criminal forfeitures.
“It clearly has been abused,” Passas says. “If they want to mess with you, they could. This is why action had to be taken [to put] some process in place, some guardrails.”