Civil Asset Forfeiture: When Property Is Seized Without a Criminal Conviction

The family ran a small convenience store in a low-income neighborhood. For twenty years, they had served their community, paid their taxes, and stayed out of trouble. Then one day, police arrived with a search warrant. They found no drugs, no weapons, no evidence of criminal activity. But they did find $38,000 in cash — the family’s life savings, kept in a safe because they did not trust banks. The police seized the money under civil asset forfeiture laws, alleging that it was drug proceeds because of the way it was packaged and bundled. The family was never charged with a crime. They had no lawyer. The burden was on them to prove the money was legitimate — a process that would cost more in legal fees than the cash was worth.

Civil asset forfeiture is one of the most controversial and least understood powers exercised by law enforcement in the United States. It allows the government to seize cash, cars, homes, and other property based on the suspicion that the property was involved in criminal activity — without the owner being convicted, or even charged, with a crime. The practice has generated billions of dollars for law enforcement agencies, but it has also produced widespread abuse, devastating families, and undermined property rights and due process.

How Civil Forfeiture Works

The Legal Framework

Civil forfeiture is a legal action against property rather than against a person. The property itself is considered the defendant, and the legal standard for forfeiture is typically “preponderance of the evidence” — a lower standard than the “beyond a reasonable doubt” standard required for criminal conviction. In most states, the government must show only that the property is more likely than not connected to criminal activity.

The due process requirements of criminal procedure provide limited protection in civil forfeiture cases because the proceeding is against the property, not the owner. The owner must affirmatively challenge the forfeiture, and the legal standards are stacked against them.

Federal Equitable Sharing

The federal equitable sharing program allows state and local law enforcement agencies to partner with federal agencies to seize property under federal forfeiture laws. This program has been particularly controversial because it allows state and local agencies to circumvent stricter state forfeiture laws by funneling cases through the federal system. Under equitable sharing, agencies can keep up to 80 percent of the proceeds from forfeitures they initiate.

What Can Be Seized

Civil forfeiture laws permit the seizure of virtually any property connected to criminal activity. Cash is the most commonly seized asset because of its mobility and the ease with which it can be transported. Vehicles used to transport drugs or drug proceeds are also frequently seized. Homes and real property can be forfeited when authorities allege they were used to facilitate drug crimes or other offenses.

The Problems with Civil Forfeiture

Innocent Owners

The most fundamental problem with civil forfeiture is that innocent people lose their property. The legal standard does not require the government to prove that the owner was involved in criminal activity — only that the property was connected to such activity. The appeal process in criminal cases does not apply because forfeiture is a civil proceeding, and the standard for recovering seized property is substantially more difficult than prevailing in a criminal case.

Research has documented thousands of cases where property was seized from people who were never charged with any crime. In one study, approximately 80 percent of forfeiture cases in some jurisdictions involved no criminal conviction. The burden shifts to the owner to prove their property was not connected to crime — an inversion of the fundamental legal principle that the government bears the burden of proof.

Policing for Profit

Civil forfeiture creates perverse incentives for law enforcement. Agencies that rely on forfeiture revenue — which can amount to millions of dollars annually — may prioritize investigations and seizures that generate revenue over those that address public safety concerns. The connection between forfeiture revenue and policing practices has been documented in multiple studies, which have found that agencies that generate more forfeiture revenue are not necessarily more effective at fighting crime.

Disproportionate Impact on Low-Income and Minority Communities

Civil forfeiture disproportionately affects low-income individuals and racial minorities. People who lack the resources to hire lawyers to challenge forfeitures are less likely to recover their property. Cash seizures are most common in low-income and minority neighborhoods where police concentrate drug enforcement efforts. The systemic inequality in the legal system is exacerbated by forfeiture practices that take wealth from communities that can least afford to lose it.

Reform Efforts

State-Level Reform

A growing number of states have enacted reforms to restrict civil forfeiture. Some states require a criminal conviction before forfeiture can occur — the “conviction required” approach that eliminates the possibility of taking property from people who are never charged or convicted. Other states have raised the burden of proof from preponderance of the evidence to clear and convincing evidence, and have provided for forfeiture of proceeds only — not the property used to facilitate crime.

Federal Reform Proposals

Multiple bills have been introduced in Congress to reform federal forfeiture laws. The most significant proposals would require a criminal conviction before federal forfeiture, end the equitable sharing program that allows state and local agencies to bypass state forfeiture laws, and require law enforcement to report detailed data on forfeiture seizures and dispositions.

Judicial Limits

The Supreme Court has imposed some constitutional limits on civil forfeiture. In Timbs v. Indiana (2019), the Court held that the Eighth Amendment’s Excessive Fines Clause applies to states and that it limits civil forfeiture. The Court sent the case back to state court to determine whether seizure of a Land Rover worth more than $40,000 for a drug offense carrying a maximum fine of $10,000 was unconstitutionally excessive.

FAQ

Do I need to be convicted of a crime to lose my property through forfeiture?

No. In most states and under federal law, property can be forfeited without a criminal conviction. The government need only prove that the property was connected to criminal activity by a preponderance of the evidence.

How can I get my property back after it is seized?

You must file a claim with the seizing agency or court within the statutory deadline — typically thirty to sixty days after the seizure. You will need to prove that the property was not connected to criminal activity. Legal representation is strongly recommended but may be expensive relative to the value of the seized property.

Can law enforcement keep the money from forfeited property?

Yes, in most cases. Law enforcement agencies can use forfeiture proceeds to fund operations, equipment, and salaries. This creates a financial incentive for aggressive forfeiture practices that critics call “policing for profit.”

What is the difference between civil and criminal forfeiture?

Criminal forfeiture occurs as part of a criminal prosecution and requires a conviction. Civil forfeiture is a legal action against the property itself and does not require a criminal charge or conviction. Civil forfeiture is far more controversial because of its lower procedural protections.