It Seemed Like a Good Idea at the Time

The Washington Post recently ran a series of reports about civil asset forfeiture; in the wake of those articles, which were very critical, two of the lawyers who first proposed the approach, John Yoder and Brad Cates, penned a response. Rather than taking a defensive posture, however, they began with an admission that the program had failed.

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.

The idea, they wrote, had seemed so simple: “Seize the ill-gotten gains of big-time drug dealers and remove the financial incentive for their criminality. After all, if a kingpin could earn $20 million and stash it away somewhere, even a decade in prison would have its rewards. Make that money disappear, and the calculus changes.”

But as they note, since that relatively modest beginning, the concept has been steadily expanded: first,  to include not only cash earned illegally but also purchases or investments made with that money. The property eligible for seizure now includes “instrumentalities” in the trafficking of drugs, such as cars or even jewelry. Eventually, more than 200 crimes beyond drugs came to be included in the forfeiture scheme.

Even at the outset, the use of seized property was an issue. Drug Enforcement Administration agents, for example, might see a suspected dealer in a car they wanted for undercover work and seize it. But if the car had an outstanding loan, the DEA could not keep it without paying the lien. This led to distorted enforcement decisions, with agents choosing whom to pursue based on irrelevant factors such as whether the target owed money on his car.

As time went on and states got into the forfeiture game, the uses became more personally rewarding for law enforcement. Maintaining an undercover identity was often no longer even part of the justification for seizures.

Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves…

Anyone who knows a criminal defense lawyer has heard horror stories about innocent people caught up in law enforcement behaviors that look more like extortion than policing. Worse, these behaviors are totally inconsistent with the constitution. As the authors say:

Our forfeiture laws turn our traditional concept of guilt upside down. Civil forfeiture laws presume someone’s personal property to be tainted, placing the burden of proving it “innocent” on the owner. What of the Fourth Amendment requirement that a warrant to seize or search requires the showing of probable cause of a specific violation?

When the folks who dreamed up these laws in the first place tell you they’ve outlived any usefulness they may once  have had, it’s probably time to get rid of them.


  1. I wondered if they might take Mr Footballs car and cash when he was up to no good in the middle of the night in Carmel. Nope. Some folks can be trolling around with a car full of cash and drugs and get to KEEP their car and cash. Funny how that works. Equal Justice?

  2. @Patmcc: Please. I have never seen any forfeiture actions in Hamilton County based on an OWI. A normal person in “Mr. Football’s” situation would have gotten the exact same sentence and possibly been able to get a deferral instead of a conviction.

  3. Interesting. Generally law enforcement is held in check by the judicial. Like the need for search warrants for example. In this case, I would have thought that civil forfeiture would be part of sentencing, administered by a judge guided by prosecution and defense lawyers.

    Under those conditions it seems like it might have achieved its original goals without creating abuses.

  4. The little town I live in (in Hancock Co.) had a problem with this. The police were confiscating property and automobiles. The autos had a way of disappearing. I guess one could assume the same for any other seized property. The town marshall (in charge of the police) decided not to seek reappointment, so he moved on to a larger town and was never prosecuted. In fact there was never an investigation. He’s now a sheriff.

  5. Kilroy, you can find Irsay’s arrest report at It was much more than just an OWI. Irsay was found with more than $29,000 in cash and several pill bottles with prescription drugs. I remember earlier reports saying the prescription bottles did not have his name on them. In any event, the quantity and type of medications showed that this was more than just a man carrying blood pressure meds in his own name. As a defense lawyer, I have seen cars seized for having a marijuana roach in the ashtray. If the forfeiture laws had been applied consistently, Irsay’s money and car would have been seized. With his wealth and ability to hire the best attorneys, the civil forfeiture may not have succeeded. With the less wealthy clients I see, success is not as likely.

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