Government Calls It Forfeiture, But It’s Theft

(Bloomberg Opinion) -- The Declaration of Independence states that all men have the right to “life, liberty and the pursuit of happiness.” This represents a change from an earlier document, which postulated humanity’s natural rights as “life, liberty and property.” The wording may have been changed to avoid enshrining slavery — already a point of contention between northern and southern states — as a right. Or it may have been changed due to Benjamin Franklin, who didn’t want to encourage the notion that government taxation was tantamount to theft.

But even though property rights aren’t all-encompassing, they are undeniably an important part of a healthy society. Obviously, some kinds of property should never be allowed, especially slavery and other things that restrict human freedom. And obviously, government should be allowed to take some portion of people’s property for the greater good, though the Fifth Amendment says it can't do so with without providing some form on compensation. But there are limits. Put too many curbs on people’s ability to own their own things, and they start to feel powerless. Allow people to steal each other’s possessions, and the economy will grind to a halt. Some economists even believe that property rights are one of the key institutions that let countries develop and grow rich.

Certainly, Americans would be up in arms if the government were allowed to seize their property any time it pleased. Or at least, that’s what one might believe. In reality, Americans have suffered the outrageous practice of civil-asset forfeiture with relative complacency.

Civil-asset forfeiture might sound boring, but in reality it amounts to government theft of people’s belongings. If the police suspect you of a crime — or claim they suspect you — this process allows them to take your belongings, even in cases when they don’t accuse you of breaking the law. Even if you are never charged, or are found not guilty, some states don’t make the police give your property back.

Obviously, this gives police some pretty awful incentives. In one Texas town, the district attorney’s office and the police force funded part of their budgets with civil forfeitures. The city of Philadelphia has made tens of millions of dollars off of its forfeiture activities. In other words, under civil-asset forfeiture, government employees can take innocent people’s property and keep it for themselves.

If this sounds like theft to you, you’re not alone. In recent years, more attention has been paid to the problem, as an increasing number of Americans have realized that it’s not just the bad guys getting their stuff stolen. A 2015 report by the Institute for Justice found that the amount forfeited to the Department of Justice and the U.S. Treasury went from about half a billion dollars in 2001 to more than $5 billion in 2014 — a 10-fold increase. Since 2007, the Drug Enforcement Administration has taken $3.2 billion from people never charged with a crime. Opposition to civil forfeiture has come from groups as politically diverse as the conservative Heritage Foundation and the American Civil Liberties Union. Before President Barack Obama left office, his administration had taken a few tentative steps toward curbing the practice.

The political outlook has darkened, however, with the ascent to power of Attorney General Jeff Sessions. Sessions promptly reversed the previous administration’s restrictions on civil forfeiture, declaring “I love that program. We had so much fun doing that.” Congress grumbled, but ultimately failed to act.

Now the Supreme Court will have its turn, having agreed to hear a case against civil forfeiture. Predicting the outcome of that case is beyond my abilities, but it’s clear that if the practice were struck down, it would be great news for American society and the U.S. economy alike.

Civil forfeiture strikes at the heart of what makes the U.S. — or any modern, wealthy economy — run. Why work hard and accumulate property if government officials can just take it for themselves whenever they feel like it? Furthermore, officially sanctioned theft undoubtedly decreases trust in government, which is already at historic lows. Why obey the laws, or pay your taxes, people may think, if the government doesn’t respect the citizenry? If the police and courts can rob people, why not also be a robber?

Ending the seizure of property from innocent people seems like it should be a no-brainer, yet no one has acted to smash it. Too many Americans still probably think that asset forfeiture can’t happen to them — that the government only steals from people who probably deserve it. That dangerous complacency erodes the property rights that successful societies are built on. Ideally, only those convicted of crimes should have their property seized. But if civil forfeiture remains on the books, anyone either acquitted or never charged with a crime should have their property returned to them — with interest.

©2018 Bloomberg L.P.

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