Forfeiting Your Rights: How Alabama's Profit-Driven Civil Asset Forfeiture Scheme Undercuts Due Process and Property Rights

By The Alabama Appleseed Center for Law & Justice and The Southern Poverty Law Center

On August 15, 1822, the brig Palmyra, an armed privateer commissioned by the King of Spain, was captured on the high seas by the USS Grampus. Accused of violating the 1819 Piracy Act, the Palmyra was sent to South Carolina to await judgment.1 Though the crew was “guilty of plunder,”2 no law existed under which its members could be punished,3 so no one was convicted of any crime. The Spanish government, claiming its f lag had been “insulted and attacked” and its property stolen, demanded that the Palmyra be returned to its owner.4 The U.S. Supreme Court determined that the ship was properly forfeited, ruling that it was permissible for the state to take property that had facilitated criminal activity, despite the fact that no person was convicted of a crime.5 Nearly two centuries later, law enforcement agencies across America are using a process known as civil asset forfeiture to take and keep billions of dollars in currency, vehicles, houses, land and weapons – even items like TVs – under the same legal reasoning. This property is taken not from pirates who lie beyond the jurisdictional reach of the United States, but rather from ordinary people who can easily be taken into custody, charged and tried if the state believes they committed a crime. Today’s use of civil asset forfeiture, in other words, is unmoored from its historical justification of imposing penalties when authorities could not convict a person suspected of crime. This lack of a link to the original use of civil forfeiture raises numerous questions, including whether it is the wrong process to meet the state’s otherwise legitimate interests of confiscating the fruit of crimes. In the 1980s, with the advent of the War on Drugs, civil asset forfeiture was sold to the public as a tool for taking the ill-gotten gains of drug kingpins. In practice, however, it has become a revenue stream for law enforcement – but one whose burden falls most heavily on the most economically vulnerable. In Alabama, as in numerous other states, the process is opaque, mostly applied to people who are not drug kingpins, and fraught with enormous potential for abuse. This study found that in half of the 1,110 cases examined in Alabama, the amount of cash involved was $1,372 or less. This suggests that prosecutors have extended the use of civil forfeiture beyond its original intent of pursuing leaders of international drug cartels. And since typical attorney fees add up to well over $1,372 – often running into the thousands for the multiple pleadings and court appearances a civil forfeiture case can entail – this means law enforcement can take these relatively small amounts of money from Alabamians, secure in the knowledge that they will never be asked to return it. Indeed, this study found that in more than half the disposed cases (52 percent), the property owner never attempted to contest the forfeiture, resulting in a default judgment – an easy win – for the state. Making matters worse, there is no state law requiring agencies to track or report the assets they seize – and no requirement that they account for how they use the property or the proceeds that are subsequently forfeited. To track the property seized and forfeited under civil asset forfeiture laws in the state, Alabama Appleseed Center for Law and Justice and the Southern Poverty Law Center reviewed court records in the 1,110 cases filed in 14 counties in 2015, comprising approximately 70 percent of all such cases filed statewide that year. The study shows that, in those 14 counties: • Seventy agencies – including police departments, city governments, district attorneys’ offices, sheriffs’ offices and inter-agency drug task forces – were awarded $2,190,663 by the courts in 827 cases that were disposed of. • Courts awarded law enforcement agencies 406 weapons, 119 vehicles, 95 electronic items and 274 miscellaneous items, including gambling devices, digital scales, power tools, houses and mobile homes. • In 25 percent of the cases, the property owner was not charged with a crime linked to the civil forfeiture action. The state won 84 percent of disposed cases against property owners who were not charged with a crime. Those cases reaped $676,790 for law enforcement. • In 55 percent of 840 cases where criminal charges were filed, the charges were related to marijuana. In 18 percent of cases where criminal charges were filed, the charge was simple possession of marijuana and/or paraphernalia. In 42 percent of all cases, including those where there were no charges, the alleged offense was related to marijuana. • In 64 percent of cases where criminal charges were filed, the defendant was African American, even though African Americans comprise only about 27 percent of Alabama’s population.6 Appleseed and the SPLC also reviewed information about all 1,591 civil asset forfeiture cases filed across the state in 2015. Of the 1,196 that had been resolved by the time of this review in October 2017:7 • 79 percent resulted in favorable verdicts for the state. • 52 percent of disposed cases were default judgments, meaning the seizures were never challenged in court by the individuals from whom assets were taken. Civil asset forfeiture cases reside in a peculiar legal netherworld premised on the fiction that objects themselves can be “guilty” of criminal activity. In the time of the Palmyra, civil asset forfeiture laws enabled the government to recover damages and punish offenders by taking the wealth of individuals who were personally beyond the jurisdiction of the United States. The practice today hardly resembles those origins. Beginning in the 1980s, Congress enacted laws that essentially created a financial incentive for law enforcement to prioritize the War on Drugs. States followed suit by expanding their use of civil forfeiture under state laws. In addition to the $2.2 million in state forfeitures in 2015, Alabama law enforcement agencies netted $3.1 million from federal forfeitures. (continued)

Montgomery, ALL: Southern Poverty Law Center,  2022.  53p.