Civil asset forfeiture allows law enforcement agencies to seize property that they believe was used in illegal activity. But they do not have to charge the property owner with a crime to keep or use the seized property. Instead, the owner is deemed guilty until he proves his innocence.
In the vast majority of asset forfeiture cases, the owner is never charged with a crime. Yet, he is punished by having his property seized. In other words, he is punished for a non-crime. This is a gross injustice. It makes a mockery of due process and property rights.
In asset forfeiture cases, the standard of proof is the “preponderance of the evidence,” which Law.com defines as
the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence…. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.
Note that law enforcement agencies allege criminal activity but pursue asset seizure through civil courts. The lower standard of proof makes it much easier to win such cases. This tactic shifts the burden from the State to the accused. In a criminal case, the State much provide evidence beyond a reasonable doubt. In an asset forfeiture case, the accused must prove his innocence.
If law enforcement agencies want to use the pretext of illegal activities as a justification for seizing property, they should have the intellectual honesty to at least charge the owner with a crime and then prove that crime. Anything less is an invitation for abuse. And if law enforcement agencies aren’t willing to do that, then we should question why they are unwilling to subject themselves to proving that a crime has actually been committed.