Legalized Government Theft is a Surprise…Even to Judges

January 18, 2021
By Stephen Silverman

Across the country, it’s legal for government to take a person’s property away, keep it, and auction it off, even if they haven’t done anything wrong. It’s truly astonishing, even for those familiar with the law: Last week, the South Carolina Supreme Court heard arguments in an important case challenging that state’s troubled and controversial civil asset forfeiture law—arguments that at times became heated when some of the justices expressed shock at the injustice of these policies in action.

South Carolina’s forfeiture laws are among the worst in the nation. The state can seize a person’s property without proof of a crime, and once the government takes that property, the owner bears the burden of proving that he or she is innocent, or that the property is not connected to a crime. The laws also provide a dangerous profit incentive—95% of forfeited proceeds go to police and prosecutors.

If this sounds unconstitutional and un-American, that’s because it is. The trial court found the laws were unconstitutional for four independent reasons: 1) They violate the prohibition against excessive fines and punishments; 2) they violate due process by putting the burden on property owners to prove their innocence; 3) they give authorities an unconstitutional profit motive to enforce the laws for their own enrichment; and 4) they do not provide for mandating judicial review or judicial authorization either before or after a seizure.

On appeal before the state Supreme Court, the state’s lawyers faced a barrage of hostile questions that drew some remarkable admissions. For example, when Justice John Kittredge demanded to know whether civil forfeiture was being abused by prosecutors, the state’s lawyer began to speak—only to be interrupted. “I don’t want you to answer the question by filibuster,” he said. “You’re not willing to acknowledge that the application of our forfeiture statutes in South Carolina have resulted in abuses.” Chagrined, the state’s lawyer replied, “If the question is, ‘Is the forfeiture law capable of abuse,’ the answer is yes.”

While the court deliberates, South Carolina lawmakers are set to tackle civil asset forfeiture reform during this legislative session. One bipartisan bill would require a criminal conviction in most forfeiture cases and would change the burden of proof back to the government, where it belongs. It would also require the government to return property if a criminal case is not started within 30 days of seizure.

That’s a good step, but the proposed legislation does not address the unconstitutional profit motive at the core of civil asset forfeiture abuse. In recent years, the amount of money seized and kept by law enforcement has skyrocketed. With that, law enforcement itself has become dependent on drug money, often arguing that eliminating the profit motive would cause budget shortfalls.

At the Goldwater Institute, we’re working to end this kind of government theft. Last year, Tucson handyman Kevin McBride’s Jeep was confiscated as evidence of a $25 crime that police said Kevin’s girlfriend committed—the alleged sale of three grams of marijuana. The Goldwater Institute stepped in and threatened to sue the government, but before we even had to step foot in court, the government gave the Jeep back. You can read more about what the Goldwater Institute is doing to put a stop to civil asset forfeiture here.

Legislators may find it difficult to make critically needed reforms to the unconstitutional policing for profit model, but this may not matter. The few courts to address this issue recently have held that it is unconstitutional to allow the police to take property and keep it for themselves. Will the South Carolina Supreme Court help curb this unreasonable and un-American practice nationwide? We will be watching closely for the answer.

Stephen Silverman is a Senior Attorney at the Goldwater Institute.