Asset forfeiture has become a permanent part of our legal framework based on the notion that it constitutes a powerful crime control weapon.  But due to the steady erosion of procedural protections and other adverse developments, forfeiture powers too often skew law enforcement priorities in ways that threaten individual rights and disregard public safety.

            In particular, statutes that give law enforcement agencies a direct financial stake in forfeiture proceeds invite overreaching.  For law-abiding citizens, the consequences are severe:  innocent property owners are harassed and deprived of their property without due process, law enforcement policies that explicitly or implicitly encourage racial profiling take root, and public confidence in law enforcement deteriorates.  In the area of civil asset forfeiture, the most important change is relatively simple:  Congress should amend the federal equitable sharing law, under which state police circumvent state forfeiture laws by turning over the forfeiture to federal law enforcement authorities in exchange for a percentage of the proceeds.

            While civil asset forfeiture was receiving the bulk of attention from Congress, reformers and influential lobbies, the scope and unfairness of criminal asset forfeiture laws mushroomed unnoticed.  Comprehensive reform in this area, which can impair the accused’s ability to retain counsel as well as the rights of third-parties not involved in the criminal case, is long overdue.  Paramount among the needed reforms are changes to the federal rules that would safeguard the accused’s right to a fair procedure for determining the amount of any criminal forfeiture, and, in particular, provide a right to challenge ex parte restraining orders.