But because law enforcement seized Ms. Starling’s money through a process called civil forfeiture, they were under no obligation to return it. And they didn’t.
Instead, they transferred it to the Drug Enforcement Administration (DEA). It’s still there.
Meanwhile, Ms. Starling’s ex-boyfriend was acquitted by a jury.
“Criminal forfeiture happens after a criminal conviction,” Kirby Thomas West, an Institute for Justice (IJ) attorney, told The Epoch Times.
“Civil forfeiture, on the other hand, happens often when there’s no criminal process at all.”
“We are leading the charge to restore due process and respect for property rights. No one should lose his or her property without being convicted of a crime,” IJ states on its website.
In civil forfeiture cases, a person’s property is considered as being connected to a crime. But, Ms. West said, it isn’t necessary to arrest someone for a crime or even charge them with being involved in some way in order for a person’s property to be taken. And once someone’s property is taken, they have to prove innocence instead of a prosecutor proving guilt.
“Unlike a criminal case, where you would go to court, and you have the right to be presumed innocent until proven guilty, in the forfeiture context, your property is presumed guilty until proven innocent. So, you have to prove that the ”innocent owner“ defense applies to you,” Ms. West said.
The innocent owner defense is a claim by a property owner that they were unaware of any illegal activity involving their property and that they took reasonable steps to prevent the property’s misuse.
More often than not, however, the seized property automatically ends up in a subset of civil forfeiture called administrative forfeiture, Ms. West said. Lawyers handle the entire process of administrative forfeiture, and the case is never brought before an Article 3 court, which involves a judge nominated by the president of the United States and confirmed by the U.S. Senate.
“The administrative process is really complicated. There’s a lot of different steps, and you don’t have a right to counsel,” Ms. West said. “So, often, people get confused with the administrative forfeiture process or don’t fill out paperwork at the right time. And then the property gets taken by default.”
Such was the case for Ms. Starling, who couldn’t afford a lawyer and attempted to regain her property on her own. In February 2022, a district court judge ruled that Ms. Starling’s money was the property of the DEA after she had missed a deadline for her petition. In desperation, she turned to the IJ, which filed an appeal.
The Constitution and Forfeiture
Historically, civil forfeiture was used for maritime crimes and piracy as a way to punish people outside of law enforcement’s jurisdiction, according to Ms. West.“The people committing the crimes were far away, outside of your jurisdiction, across the ocean, and you can’t reach out and punish them in any way. But what you could do is seize their ship, seize their vessel, and seize the proceeds of the crimes that they’re committing,” she said.
Today, however, civil forfeiture is occurring in cases in which the government could have the alleged criminal appear in court but chooses instead to claim a person’s private property through administrative or civil forfeiture, because it’s easy, Ms. West said.
The U.S. Constitution guarantees the right to a prompt hearing if the government intends to keep an individual’s property via the Fifth Amendment, which, Ms. West said, makes civil forfeiture illegal.
However, she said that this position is an “open question” still being litigated in the courts.
Billions Seized
The reason the government and law enforcement agencies continue to use civil forfeiture, according to Ms. West, is because it’s incredibly lucrative.
IJ’s report is the only comprehensive study that examines civil forfeiture in all 50 states and federally. IJ released its first report in 2010 and publishes a new one every five years.
For example, Ms. West said law enforcement purchased a $70,000 muscle car with its forfeiture fund in Georgia, while in New York, law enforcement spent $250,000 on travel and meals.
“There are all kinds of crazy examples of things that law enforcement has done with forfeiture funds,” she said.
Recognizing the possible problematic nature of civil forfeiture, Ms. West said some states have enacted legislation to help protect citizens. Missouri, for example, enacted a state constitutional amendment that requires forfeiture funds to go directly to schools. But that requirement hasn’t prevented forfeiture funds from being diverted in the state, the data show.
“In 2019, an investigation found that only 2 percent of forfeited funds in Missouri actually make it to Missouri schools,” Ms. West said.
For states that have passed civil forfeiture practice reforms, law enforcement agencies can get around the constraints by participating in what’s known as “equitable sharing” with the Department of Justice (DOJ).
“[Law enforcement] can get back up to 80 percent of the proceeds through equitable sharing. Then, the state reforms don’t apply to them because it’s a federal forfeiture, not a state forfeiture,” Ms. West said.
In response to The Epoch Times’ request for comment on the benefits of civil forfeitures and the ability to abuse them, the Dallas Police Department said via email, “Chapter 59 of the Code of Criminal Procedure gives the Police Department the authority to seize certain property that has been used in the commission of certain felonies. After proper notice and a hearing, seized property may then be forfeited.
“The Dallas Police Department seizes property where probable cause exists to believe the property is contraband, under Chapter 59.”
The New York Police Department told The Epoch Times via email, “In every forfeiture matter handled by the NYPD, the defendant/owner is afforded due process and a full and fair opportunity to contest the forfeiture matter in court.
“With respect to motor vehicles in particular, in accordance with the federal court decision in Krimstock v. Kelly, vehicle owners have the right to a prompt hearing to challenge the seizure of their vehicle, and to request that it be returned to them while an action for forfeiture is pending. These hearings take place before the New York City Office of Administrative Trials and Hearings (OATH).
“All funds obtained through civil forfeiture settlements or judgments are deposited into the New York City general fund. The NYPD does not currently handle forfeiture cases involving currency.”
The Los Angeles Police Department and the District of Columbia’s Metropolitan Police Department didn’t respond to The Epoch Times’ requests for comment by the time of publication. The Fort Lauderdale Police Department said it was unable to provide comment by the time of publication.
The Case for Forfeiture
According to the DEA, asset forfeiture is an effective way to “attack the financial structure of drug trafficking and money laundering groups worldwide, from the lowly courier carrying cash or drugs to the top levels of drug cartels. Forfeiture, particularly civil forfeiture, is very effective against drug crimes committed for profit.”The DEA says it does this by taking the profit away from the crime, weakening criminal enterprises, punishing criminals, aiding in dismantling drug trafficking and money laundering organizations, and removing the instrumentalities of a crime—such as a car or boat used to traffic drugs.
Ms. West finds those awards problematic.
“Everybody agrees, even the most ardent critics of civil forfeiture, that criminal forfeiture is absolutely constitutional and appropriate. If you have been convicted of a crime, yes, it’s correct that government should get to keep the fruits of that crime,” she said.
Proving a Crime
Ms. West said that while law enforcement agencies like to argue that civil forfeiture is a way to disrupt major drug cartels, “the evidence doesn’t bear that out.”She said that from 2016 to 2019, the DOJ’s median currency forfeiture amount was approximately $12,000; for the U.S. Department of the Treasury, the median amount was a little more than $7,000. Digging down to state-level agencies and law enforcement, IJ has statistics for 20 states, and the median currency forfeiture for those states was about $1,000.
“When you look at how low these amounts are—the median forfeiture amounts—it just really does not check out for law enforcement to claim that they’re using forfeiture to disrupt major drug cartels and seize vast amounts of money from drug kingpins. It’s just not supported by the data,” Ms. West said.
She said that crime rates haven’t increased in states such as New Mexico, which abolished civil forfeiture in 2015.
“If it’s true that forfeiture is working to deter crime, then you would expect where states limit forfeiture and make it harder for law enforcement to pursue forfeiture, you would see an increase in crime,” she said. “And that’s not been borne out by the research.”
As for why the DOJ awarded private companies more than $6 billion to help with asset forfeiture, Ms. West said, “You’re seeing them spend this vast amount of money on civil forfeiture because it’s much, much easier to take property through civil forfeiture than it is to prove that somebody committed a crime beyond a reasonable doubt.
“And it also has the added bonus of once you’ve done it, you get to keep the proceeds.”
A case in Nevada is one example, Ms. West said. Stephen Lara, a Marine who served tours in Iraq and Afghanistan, was stopped by Nevada Highway Patrol in 2021. Distrustful of the government after his service, Mr. Lara traveled with his life savings in the trunk of his car.
“When he was stopped in 2021 by the Nevada Highway Patrol, he was asked if he had any cash, and he told the officers, ‘Yes, I have my life savings in the trunk of my car. I also have these bank receipts to show withdrawals, and this is legit,’ and he showed them,” Ms. West said.
“They had no reason to think he had done anything wrong. There were no drugs. There was no suspicion that he had drugs. He was totally respectful to law enforcement officers, as you'd expect from a veteran. Everything was above board. We have dashcam and bodycam footage that shows the interactions with the officers were totally respectful.”
The amount that Mr. Lara was traveling with was just under $87,000. And despite the absence of a crime, the officers confiscated Mr. Lara’s money and turned it over to the DEA under civil forfeiture. Mr. Lara turned to IJ.
“We sued on Stephen’s behalf, and they ultimately turned his money back over to him,” Ms. West said.
“Once we get involved and file a lawsuit, the government will return the money, which is great for our client, but what they’re trying to do is moot our case so that we can’t get a judicial decision that says this was wrong, and prevent them from doing it to other people.”
The FAIR Act
In June, Ms. West, on behalf of IJ, testified before the House Judiciary Subcommittee on civil asset forfeiture and the need to reform the practice.“The vast majority of forfeitures done under federal law are civil in nature. From 2000 to 2019, 84 percent of all forfeitures done by DOJ agencies were civil forfeitures, while 98 percent of forfeitures done by Treasury agencies were civil forfeitures,” she said.
Sen. Rand Paul (R-Ky.) reintroduced companion legislation in the Senate.
“The FAIR Act will protect Americans’ Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process. It guards against abuse while maintaining the ability of courts to order the surrender of proceeds of crime.”
If the FAIR Act is enacted, among other provisions, it will restore the integrity of the Fifth Amendment, end equitable sharing, and change the burden of proof so that the federal government has to present “clear and convincing” evidence if it wants to retain assets—a significant step up from the current “preponderance of the evidence,” which requires the government to show that its claim is likely true.
Ms. West said the most crucial aspect of the FAIR Act is that it would address the profit incentives of forfeitures.
“When an agency uses forfeiture, they keep that money within the agency. But under the FAIR Act, anytime forfeiture happens, the proceeds would go to a general fund rather than individual agencies.”
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