The Jurisprudence of Civil Asset Forfeiture

The seizure by the state of assets connected to crime is a controversial subject. Asset forfeiture’s proponents—mainly law-enforcement agencies—view it as essential to fighting crime (especially the drug trade), because it deprives wrongdoers of the fruits of their illicit activities. Civil libertarians worry about the lack of due process for criminal defendants and the danger of official abuse of this crime-fighting tool.

“Civil” asset forfeiture—seizing property without a criminal conviction—raises yet more qualms. Many constitutional conservatives are concerned about the confiscation of assets (often cash) belonging to third parties, sometimes innocent third parties, without procedural protections. Forfeited assets account for a significant percentage of the budget of some rural law-enforcement agencies, highlighting the potential for untoward economic incentives—sometimes dubbed “policing for profit.”

A recent appellate decision in Texas, State of Texas v. One (1) 2004 Lincoln Navigator, has stirred the pot. Unfortunately, many who are upset about this case have conflated the policy aspect, that is, asset-forfeiture legislation, with the merits of the legal arguments considered by the Texas Supreme Court. The unanimous decision, and the outcry it raised from Republican activists in the Lone Star State (who tend to lean toward the Tea Party brand of conservatism), present a good opportunity to explore the issue.

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