Asset Forfeiture and the Destruction of American Liberty

By: Jacob Hornberger

For centuries, it has been an established tenet of Western jurisprudence that a person cannot be punished for a crime unless the government first convicts him of the crime in a court of law. After the Constitution called the federal government into existence, our American ancestors demanded that this principle be enshrined in the Bill of Rights because they were convinced that federal officials would end up violating it.

The Fifth Amendment states in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury…. nor be deprived of life, liberty, or property, without due process of law.”

What is “due process of law”? It is a phrase whose origin stretches all the way to Magna Carta in the year 1215. It means “notice and hearing.” In a criminal case, that means the federal government is prohibited from depriving a person of life, liberty, and property without a formally issued grand-jury indictment and a formal trial, where the government must prove a person’s guilt beyond a reasonable doubt. In a civil case, it means that the government must provide advance notice and a formal hearing or trial before it can deprive a person of his property.

The centuries-old judicial principle of due process of law was destroyed when Congress enacted what are called asset-forfeiture laws, which are part of the decades-long federal effort to win the war on drugs, which is arguably the most failed, deadly, destructive, and racially bigoted government program in our nation’s history.

Realizing that all of their previous efforts to “win” the war on drugs had failed, the feds came up with what they considered was a brilliant idea, but one that actually has turned out to be one great big crooked and corrupt racket that forcibly takes money out of the pockets of law-abiding citizens and puts it in the coffers of state cops and the federal Drug Enforcement Administration, in direct contravention of the due process clause of the Fifth Amendment.

Here is how the system works. The state police decide to stop a late-model car traveling down the highway that is being driven, say, by an African-American. The cop might come up with some excuse for the stop, such as a defective tail light. After asking for a driver’s license and car registration, the cop will ask the driver if it’s okay if he searches the vehicle. The driver, who has nothing to hide, says yes. The cop finds a case containing $10,000 in cash. The driver explains that he is on his way to buy a used car for his son.

What happens then? Under traditional rules of jurisprudence, nothing should happen except to let driver proceed on his way, with, at most, a citation for a defective tail light. The driver has not committed any other offenses. Under our system of justice, he should be free to be on his way.

But that’s not what happens under the asset-forfeiture law. The law permits the cops to assume that the cash must be “drug money.” Thus, the law now permits the cop to just take the driver’s money and transport it back to the police station, where the loot is divided up between the police department and the DEA.

Notice something important about this process: There are no criminal charges filed against the driver. There is no advance notice of the seizure. There is no hearing or trial before the seizure. People, especially poorer people, are having their money seized and taken from them by the cops in direct violation of the due process clause of the Fifth Amendment (as well as the due process clause of the Fourteenth Amendment).

The cops say to their victim: If you don’t like what we are doing to you, you can sue us. And they can. But as a practical  matter, most don’t. They just resign themselves to the theft of their money. After all, most of them don’t have the money to hire a lawyer to file a lawsuit in the hope of getting their money back. Even if they do, they know that they’ll have to pay the lawyer $300-$500 an hour, with no assurance that they will prevail in the litigation. It’s just not worth it to most people, especially most poorer people.

It’s a classic case of highway robbery at the hands of the state. It’s also a classic example of how Americans have had their liberty destroyed by their own government, which was precisely what our ancestors were trying to prevent when they enacted the Bill of Rights.